Oct 13

Kirstin Lobato’s Evidentiary Hearing — Fifth Day Report — Hearing Completed

The Fifth day of Kirstin Lobato’s evidentiary hearing for two ineffective assistance of counsel claims in her habeas corpus petition began at 10:45 p.m. on Friday, Oct. 13, 2017 in the Clark County Courthouse in Las Vegas.

Melisa Sopher, Jane Pucher, Adnan Sultan and Vanessa Potkin (L to R) The Innocents Project of New York’s legal team during Kirstin Lobato’s evidentiary hearing in Las Vegas from Oct. 9 to Oct. 13, 2017. The picture was taken in the courtroom after the evidentiary hearing concluded. (Ms. Sopher is a paralegal, while the other three are lawyers with Ms. Potkin the lead lawyer.) (Photo by Hans Sherrer)

Melisa Sopher, Jane Pucher, Adnan Sultan and Vanessa Potkin (L to R) The Innocents Project of New York’s legal team during Kirstin Lobato’s evidentiary hearing in Las Vegas from Oct. 9 to Oct. 13, 2017. The picture was taken in the courtroom after the evidentiary hearing concluded. (Ms. Sopher is a paralegal, while the other three are lawyers with Ms. Potkin the lead lawyer.) (Photo by Hans Sherrer)

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.

On Thursday morning Ms. Lobato concluded her presentation of evidence, and on Thursday afternoon the State presented rebuttal evidence by a forensic pathologist to counter her new forensic pathology evidence of Mr. Bailey’s time of death.

The State presented one rebuttal witness on Friday, Dr. Jeffrey Wells, a forensic entomologist who is a professor at Florida International University in Miami. Dr. Wells is a past president of the North American Forensic Entomology Association.

Dr. Wells was presented by the State to rebut Ms. Lobato’s new expert forensic entomology evidence that Mr. Bailey died after sunset on July 8, 2001, based on the opinion of her experts that if he had died during daylight he would have had fly eggs on one or more locations of his body.

Dr. Wells was admitted as a forensic entomology expert by Judge Stefany Miley, and he was questioned by ADA Sandra DiGiacomo.

A summary of Dr. Wells’ key direct testimony follows:

1. He obtained his degree in zoology in 1982, and his master’s degree in entomology in 1985.

2. He is not board certified, however, he is a past president of the North American Forensic Entomology Association, and a member of a number of professional organizations.

3. He has published more than 60 peer reviewed articles on entomology.

4. In his career he has testified in six criminal cases and one civil case.

5. In all five of the criminal cases in which he testified that involved the presence of blow fly eggs, eggs were laid on the deceased person’s face and other body locations.

6. The focus of his research is using entomology to estimate time of death.

7. A 95% confidence level is how he thinks an expert’s opinion about time of death should be expressed.

8. About two weeks before testifying he was contacted by ADA DiGiacomo and asked to review the forensic entomology reports in Ms. Lobato’s habeas petition provided by Dr. Gail Anderson, Dr. Linda Lou O’Connor, and Dr. M. Lee Goff that Mr. Bailey died after sunset at 8:01 p.m. on July 8, 2001. He was also asked to review the forensic pathology reports provided by Dr. Glenn Larkin and Dr. Andrew Baker, who both determined from the medical evidence that Mr. Bailey died around 8 p.m. on July 8, but the absence of blow fly eggs on his body suggested his death was even closer to when the discovery of his body was reported to Emergency 911 at 10:36 p.m.

9. After reading the expert’s reports Dr. Wells agreed to act as a forensic entomology expert for the State.

10. Blow flies are attracted by the odor given off by a deceased person, and are typically the first insect to colonize a dead body.

11. In Florida where he teaches and does research, blow flies are the first insects on a body.

12. Blow flies ordinarily lay eggs in a deceased person’s wounds, nose, mouth, eyes, and genitals. There are cases where they are known to have laid eggs on a deceased person’s clothing.

13. Blow flies lay eggs in garbage that has meat scraps.

14. Blow flies lay eggs that quickly develop into maggots, while flesh flies that are also attracted to dead bodies, lay live maggots.

15. Blow flies are stronger than flesh flies, and when the two compete for the same part of a body the blow fly can be expected to prevail.

16. The age of maggots found on a body can be used to determine the minimum time of death.

17. In examining the crime scene and autopsy photographs of Bailey’s body he did not see anything that could definitely be identified as an insect egg, although there were small white specks in a couple of places that possibly might be eggs. However, he lacked the information to determine they are eggs.

18. Dr. Wells believes in application of the scientific principle of data collection and replication to forensic entomology.

19. Dr. Wells’ stated he was not aware of any suitable data concerning the study of blow flies in Las Vegas to show their behavior patterns and the development of their eggs in the Southern Nevada environment.

20. Dr. Wells testified: “We don’t have enough data to determine how long the victim laid in the trash enclosure, and if he was present during daylight.”

21. Consequently, Dr. Wells did not state an opinion about Mr. Bailey’s time of death.

22. ADA DiGiacomo asked Dr. Wells what would be needed for him to render an opinion about Bailey’s time of death. Dr. Wells said a test subject — what he called a “Mystery Corpse” — would need to be put outside in Las Vegas so the actual behavior of insects toward the corpse could be observed and documented. He said the “Mystery Corpse” would typically be a pig carcass. He also said one “Mystery Corpse” study wouldn’t be enough, because the data from the first study would need to be replicated by data collected from a second study in order for the data to be reliable enough to calculate a probability of time of death.

23. He doesn’t know that blow flies in Las Vegas don’t behave and their eggs don’t develop the same as in other places in the U.S. — there just isn’t any local Las Vegas data to prove it.

24. He knows of no good reason to favor the opinion of a forensic pathologist about a deceased person’s time of death over the opinion of a forensic entomologist.

Dr. Wells’ direct examination ended at noon. Court was then in recess for 20 minutes.

Innocence Project staff attorney Adnan Sultan cross-examined Dr. Wells.

A summary of Dr. Wells’ key cross-examination testimony follows:

1. Dr. Wells agreed the best practice is not to review the reports by other experts in a case before rendering an opinion — which he didn’t follow in reading the reports of five of Ms. Lobato’s experts before reviewing the relevant evidence in Mr. Bailey’s homicide case.

2. Dr. Wells agreed to act as a forensic entomology expert for the State in exchange for payment of $100 per hour preparing for his testimony, and $250 per hour while testifying.

3. “This case involves no insect evidence.” (That testimony by Dr. Wells excluded the possibility the white matter he testified about on direct examination were insect eggs.)

4. “Blow flies are the first insect to go to a carrion.”

5. Blow flies are attracted by the odor emitted by a body that begins immediately after death.

6. Blow flies quickly find and lay eggs on a dead body because “it is necessary to reproduce.”

7. Dr. Wells’ testified: “I have seen blow flies quickly find and lay eggs on a carrion.”

8. A blow fly lays a cluster of 150 to 300 eggs on a dead person.

9. Typically more than one blow fly lays eggs on a dead body, and the flies typically lay their eggs together in a large cluster.

10. Blow flies typically lay eggs first on a person’s head — in their eyes, nose, and mouth.

11. There are 90 different species of blow flies in the U.S.

12. Ideal environmental factors for blow fly activity are moderate temperatures, no wind, and no rain.

13. “There is no where in the U.S. that doesn’t have blow flies.” “Blow flies are in Death Valley.”

14. Dr. Well’s stated the one place there are no blow flies is at the top of snow covered mountains (because it is too environmentally harsh). He specifically mentioned the top of Mt. Rainier in Washington State (which is 14,411′ high) as a place where blow flies wouldn’t be found.

15. In a series of questions by attorney Sultan, Dr. Wells testified he agreed that:
A. Blow flies are attracted to an undisturbed dead body.
B. Blow flies are attracted to open wounds on a dead body.
C. Blow flies are attracted to blood on a dead body.
D. Blow flies are attracted to accessible outdoor carrion.
(All of those factors were involved in the location and condition of Mr. Bailey’s body.)

After Dr. Wells’ cross-examination was completed, ADA DiGiacomo questioned him on re-direct examination.

A summary of Dr. Wells’ key testimony on re-direct examination follows:

1. Normally he doesn’t review reports written by other experts in a case before rendering an opinion, but he was specifically asked to do so by the State in this case.

2. He disagreed with the expert opinions of Ms. Lobato’s experts about Mr. Bailey’s time of death.

3. There is not enough data specific to Las Vegas to determine if the environmental conditions on July 8, 2001 were optimal for blow fly activity during the day.

4. Data from other areas of the U.S. regarding blow flies can’t be used to determine how blow flies behave and their eggs develop in Las Vegas.

After Dr. Wells’ re-direct examination was completed, attorney Sultan questioned him on re-cross examination.

A summary of Dr. Wells’ key testimony on re-cross examination follows:

1. He did not review the reports of forensic entomologists Dr. Jeffrey Tomberline and Dr. Robert Kimsey prior to testifying.

2. He knew it would aid the State’s case if he arrived at a conclusion contrary to the complimentary expert opinions regarding Mr. Bailey’s time of death independently arrived at by the three forensic entomologists and the two forensic pathologists whose reports he did read.

After Dr. Wells’ testimony concluded at 1 p.m. the State’s rebuttal evidence was complete.

The following are several observations regarding Dr. Wells’ testimony:

1. Dr. Wells’ testimony effectively amounted to his opinion that blow flies in Las Vegas might not lay eggs under the environmental conditions that existed on July 8, 2001 of daytime temperatures ranging from the low 80s to a maximum of 95° and no wind and no rain — which Ms. Lobato’s experts testified are optimal conditions for maximum blow fly activity on a dead body in the United States.

2. Dr. Wells’ testimony also effectively amounted to his opinion that blow flies in Las Vegas might not lay eggs under the location conditions that existed for Mr. Bailey of his body being in an open air trash enclosure surrounded by and loosely covered by trash, with his body protected from direct sunlight, and his body readily accessible to blow flies — which Ms. Lobato’s experts testified are optimal conditions for maximum blow fly activity on a dead body in the United States.

3. Dr. Wells’ testimony also effectively amounted to his opinion that blow flies in Las Vegas might not lay eggs under the physical condition of Mr. Bailey’s blood covered body that had numerous open wounds on his face, neck, chest, and the top of his head; his eyes, ears, nose, and mouth were readily accessible to flies; and a large area of his groin area had been skinned and was open to flies or other insects to colonize or feed on — all of which Ms. Lobato’s experts testified are optimal conditions for maximum blow fly activity on a dead body in the United States.

4. Dr. Wells’ testimony effectively repudiated the use of forensic entomology to determine a deceased person’s time of death in the United States except under the specific circumstance that multiple entomology studies concerning the behavior of insects on a carrion have been performed in the geographic location where the person died. No such study has been conducted in Clark County (Southern Nevada) where Las Vegas is located, and it is the 12th most populous county in the U.S.* It is likely that such studies have been conducted in only a handful of cities or counties in the United States.

It is unknown what impact Dr. Wells’ opinion that not enough forensic entomology data specific to Las Vegas exists for Ms. Lobato’s forensic entomology experts to arrive at a reasoned opinion about Mr. Bailey’s time of death, will have on Judge Miley’s deliberation.

With the evidentiary hearing concluded, Judge Miley ordered that Ms. Lobato and the State submit simultaneous briefs on or before November 1, 2017, that present their respective positions regarding the evidence presented during the hearing.

Judge Miley said she will issue her written Findings of Fact and Conclusions of Law in the case by November 13, 2017. She said that upon the filing of her ruling that will either grant or deny Ms. Lobato a new trial based on ineffective assistance of her trial counsel, she will send a copy of her ruling to Ms. Lobato’s lawyers and the State.

The evidentiary hearing was concluded at 1 p.m.

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 the report for Day Four of the hearing held on Oct. 12.

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.

Endnotes:
* 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.

** The U.S. Census Bureau’s population estimate for July 1, 2016 lists Clark County as the U.S.’s 12th most populous county. See, www.factfinder.census.gov .

October 14, 2017
By Hans Sherrer
Justice Denied

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