On December 29, 2017 all charges were dismissed against Kirstin Blaise Lobato related to Duran Bailey’s 2001 homicide in Las Vegas. After a hearing Clark County, Nevada District Court Chief Judge Elizabeth Gonzalez’ signed an order stating:
“Having come before the court on December 29, 2017, for the State’s Motion to Dismiss with Prejudice, the Court finding good cause has been shown, hereby Orders that the above entitled case is dismissed with prejudice. The Defendant shall be released from the custody of the Nevada Department of Corrections forthwith.”
Judge Gonzalez’ one-page order ended the 35-year-old Lobato’s saga that began with her arrest on July 20, 2001 for the homicide of homeless Duran Bailey in Las Vegas on July 8, 2001.
The dismissal of the charges was based on new forensic evidence proving Bailey died at a time when it is known Lobato was at her home in Panaca 165 miles from Las Vegas.
The dismissal with prejudice means that Kirstin Lobato can never be charged again, and it is a tacit admission by the Clark County District Attorney’s Office that they arrested and prosecuted the wrong person for Bailey’s homicide.
The following is a brief synopsis of Kirstin Lobato’s 16 years, 5 months, and nine day ordeal.
At 10:36 p.m. on July 8, 2001, 911 was notified a body had been found in the trash enclosure for a Nevada State Bank branch across the street from the Palms Casino in Las Vegas. That person was 44-year-old Duran Bailey. Among Bailey’s many wounds was his penis had been severed.
Las Vegas Metro Homicide Detectives Thomas Thowsen and James LaRochelle had several leads for possible suspects, but they didn’t pursue them.
On July 20 Thowsen received a call from a juvenile probation officer in Lincoln County, Nevada that she had been told by a friend that 18-year-old Kirstin Lobato said she used a knife to defend herself against an attempted rape in Las Vegas, and may have cut the man’s penis off. Thowsen was told Lobato lived in Panaca, 165 miles north of Las Vegas.
Thowsen decided Lobato committed Bailey’s homicide, and within hours of the call he drove to Panaca to arrest her and seize her car. LaRochelle and a crime scene analyst also drove to Panaca.
After they arrived at Lobato’s home she was questioned by Thowsen and LaRochelle. She told them that before mid-June 2001 she was sexually assaulted by a huge black man in the parking lot of a Budget Suites Hotel in east Las Vegas. She fended him off by trying to cut his penis. Even though she stated this event occurred weeks before Bailey’s homicide, Thowsen arrested her and she was charged with murdering him.
The prosecution’s case was based on its assumption her statement about being assaulted at a Las Vegas hotel before mid-June 2001 was the same event as Bailey’s homicide on July 8, because she said she defended herself by trying to cut her assailant’s penis, and Bailey’s penis had been amputated.
Lobato’s alibi defense, supported by several witnesses, was that on July 8 she was home in Panaca 165 miles north of Las Vegas.
Lobato was convicted by a jury in 2002 of first-degree murder and other charges related to Bailey’s homicide.
Before her trial she insisted she was innocent and rejected the prosecution’s deal to plead guilty to involuntary manslaughter and a three year prison sentence.
After her conviction she was sentenced to 45 years to life in prison.
In 2004 the Nevada Supreme Court granted her a new trial based on errors by the trial judge.
She was retried in 2006.
During her retrial the prosecution again presumed her police statement and Bailey’s homicide were about the same event. The prosecution also argued that Bailey’s death occurred in the early morning of July 8.
Ms. Lobato’s alibi defense of being in Panaca on July 8 was supported by many more alibi witnesses than in 2002. The prosecution conceded during its closing argument that her credible alibi witnesses established she was in Panaca from late morning until after Bailey’s body was found that night. However, they argued it didn’t matter because Bailey died in the early morning.
She was convicted by the jury of voluntary manslaughter and other charges. She was sentenced to 13 to 35 years in prison.
The Nevada Supreme Court affirmed her convictions and sentence in 2009.
In May 2010 Lobato filed a habeas corpus petition that asserted 79 grounds for a new trial. Her petition included grounds based on new forensic entomology evidence discovered after her trial that established Bailey’s time of death was after sunset at 8 p.m. on July 8, 2001, and new forensic pathology evidence he died about or after 8 p.m. She asserted her jurors would not have convicted her if they had known that new evidence proving Bailey died in the evening when the prosecution admitted she was in Panaca.
Lobato appealed after her petition after it was denied in August 2011 by Judge Valorie Vega.
More than five years later, in November 2016 the Nevada Supreme Court remanded her case back to the district court to consider 27 of her petition’s grounds — 25 related to her claim of actual innocence, and two related to her trial lawyers providing ineffective assistance of counsel.
Vega had retired, so Judge Stefany Miley was assigned to Lobato’s case.
Miley presided over a five day evidentiary hearing in October 2017.
During the hearing Ms. Lobato presented the testimony of three forensic entomologists who testified that in their expert opinion Bailey died after sunset at 8 p.m., because of the absence of blow fly eggs in his orifices and numerous open wounds. A forensic pathologist testified that in his expert opinion Bailey died at 8 p.m., give or take a couple of hours, based on the rigor mortis of Bailey’s body at the crime scene and during his autopsy.
In rebuttal the State, represented by the Clark County District Attorney’s Office, presented the testimony of a forensic entomologist and a forensic pathologist. The entomologist testified that no study had been conducted regarding the behavior of blow flies in the Las Vegas area, so he couldn’t provide an expert opinion of Bailey’s time of death. The pathologist testified that primarily based on her reliance on formulas regarding the development of rigor mortis, in her opinion Bailey died sometime between mid-to-early morning of July 8.
On December 19, 2017 Judge Stefany Miley granted Kirstin Lobato’s habeas corpus petition and ordered a new trial. Judge Miley ruled that Lobato’s trial lawyers provided ineffective assistance of counsel for failing to investigate and present forensic evidence that Duran Bailey was killed on July 8, 2001 in Las Vegas at a time when credible alibi evidence established she was 165 miles away at her home in Panaca.
The Clark County District Attorney’s Office decided not to retry Lobato, and on December 28, 2017 requested a hearing.
The hearing on the morning of the 29th resulted in the vacating of Lobato’s convictions and the dismissal of the charges by Judge Gonzalez, who also ordered that she be released forthwith from DOC custody.
During the hearing the DA’s Office was represented by ADA Sandra DiGiacomo and Deputy DA Christopher Lalli. Lobato was represented by David Chesnoff. DiGiacomo was one of Lobato’s prosecutors in her trial in 2002, her retrial in 2006, and she had represented the State during the evidentiary hearing in October 2017.
Judge Gonzalez’ Order did not result in Lobato being immediately freed. She had a DOC detainer for an unrelated misdemeanor conviction in April 2007 for “Conspiracy To Commit Voluntary Sexual Conduct” with another female inmate at the Florence McClure Women’s Correctional Center in North Las Vegas. (The conspiracy was the two woman voluntarily agreed to have sex with each other.) In that case Lobato was sentenced to serve 365 days in the Clark County Detention Center. That sentence was to begin with expiration of her 13 to 35 year prison sentence for her convictions that were vacated on Friday, December 19. Brooke Keast, a spokeswoman for the Nevada Department of Corrections told the Associated Press that Lobato will be transported to the county jail in downtown Las Vegas. It isn’t known when that will occur.
It is likely Lobato will challenge her misdemeanor conviction, or possibly try to have her sentence converted into a probationary sentence so she can be released from being incarcerated.
It may be difficult for some people to comprehend that in Las Vegas of all places, it is a crime for two women to have voluntary sexual relations — as long as they are in custody.