Feb 26

Kirstin Blaise Lobato Files Petition For DNA Testing

By Hans Sherrer
Justice Denied magazine

Kirstin Blaise Lobato filed a petition on Friday, February 25 in the Clark County, Nevada District Court seeking an order for post-conviction DNA testing of evidence recovered from the scene of Duran Bailey’s murder in Las Vegas on July 8, 2001. Mr. Bailey was murdered in a west Las Vegas bank’s trash enclosure.

Mr. Bailey’s autopsy determined he died from a head injury, but he also had been beaten and stabbed in his face, neck, hands, abdomen, rectum and his penis had been amputated.

Ms. Lobato was convicted by a jury on October 6, 2006 of voluntary manslaughter and sexual penetration of a dead body (Mr. Bailey’s rectum injury).

Ms. Lobato’s alibi defense was that on the entire day of Mr. Bailey’s murder she was 170 miles north of Las Vegas in the Lincoln County town of Panaca where she lived with her parents.

The prosecution conceded during their closing arguments to the jury that there was no physical or forensic evidence Ms. Lobato was at the crime scene.

Ms. Lobato’s prosecution and conviction were based on her conversations with many people describing that she fought off an attempted rape in the parking lot of a Budget Suites Hotel in east Las Vegas by trying to cut her attacker’s penis. When the detectives investigating Mr. Bailey’s murder learned of that rape attempt they drove to Panaca and interrogated Ms. Lobato. She repeated her account of the attempted rape that she described as occurring weeks prior to the date of Mr. Bailey’s murder. Since Mr. Bailey’s penis had been amputated the detectives arrested Ms. Lobato for Mr. Bailey’s murder. The prosecution was able to convince the jury that the attempted rape Ms. Lobato described as occurring at the Budget Suites Hotel and Mr. Bailey’s brutal murder at the Las Vegas bank were the same event.

The Nevada Supreme Court affirmed Ms. Lobato’s convictions in February 2009 solely on the basis of her “admission” to using her knife to try to cut her attacker’s penis when she defended herself from the rape attempt which the Court assumed, just as the prosecution and jury did, was Mr. Bailey’s murder.

Ms. Lobato filed a 770-page petition for a writ of habeas corpus on May 5, 2010 in the Clark County District Court that includes 79 grounds supporting the granting of a new trial. Included is new medical and scientific evidence that Mr. Bailey died on the evening of July 8. Ms. Lobato contends the new evidence proves it is physically impossible she murdered Mr. Bailey because the prosecution conceded in their arguments to the jury that her credible alibi witnesses establish she was in Panaca from at least 11:30 am on the morning of the 8th until after Mr. Bailey’s body was found about 10 p.m. that night.

Although all DNA testing of crime scene evidence conducted prior to Ms. Lobato’s trial excluded her, there was evidence that wasn’t tested and more sensitive DNA testing techniques have been developed since her conviction that can detect the DNA of skin cells from items that a person has touched. Crime scene evidence that Mr. Bailey’s killer(s) likely touched include the plastic sheeting wrapped around his torso, cigarette butts found on his body underneath the plastic sheeting, and his pants that were pulled down to his knees.

Ms. Lobato’s petition seeks the DNA testing of the plastic sheeting, the cigarette butts, Mr. Bailey’s pants, and 13 other items of evidence recovered from the crime scene.

Ms. Lobato petition filed on February 25 states that the requested DNA testing could identify that Mr. Bailey was murdered by Diann Parker and possibly her Hispanic male friends who lived less than 100 yards from the murder scene. Prior to Mr. Bailey’s murder Ms. Parker reported to the Las Vegas Metro PD that Mr. Bailey beat and raped her on July 1 – a week before his murder. Ms. Lobato presented the third-party culprit defense at trial that Mr. Bailey was murdered in retaliation for his assault on Ms. Parker that occurred only hours after her Hispanic male friends warned him to stay away from Ms. Parker. Ms. Lobato argued at trial that Ms. Parker’s Hispanic friends had the motive, means and opportunity to murder Mr. Bailey that she didn’t have. Ms. Lobato’s habeas corpus petition includes the new evidence that Ms. Parker admitted to the detectives investigating Mr. Bailey’s murder that the morning after his murder she had a bloody shirt and bloody pants – however, the detectives didn’t follow up on that incriminating information.

Ms. Lobato is represented pro bono by Travis Barrick, a prominent Las Vegas attorney. The Innocence Project in New York has agreed to pay for the DNA testing if Ms. Lobato’s petition is granted.

The DNA petition filed on February 25, 2011 is: In Re: Kirstin Blaise Lobato, Petition Requesting Post-Conviction DNA Testing Pursuant to NRS §176.0918, District Court, Clark County, Nevada. The Petition can be read at, http://justicedenied.org/kl/lobato_dna_petition_11252011.pdf

Ms. Lobato is believed to be the prisoner convicted of a non-capital crime to file a petition for post-conviction DNA testing in Nevada under a revised state statute that went into effect in October 2009. Prior to the 2009 change in the state law only death row prisoners were authorized to seek post-conviction DNA testing in Nevada.

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