Special to the Las Vegas Tribune
On December 29, 2017 Kirstin Blaise Lobato’s charges were dismissed related to Duran Bailey’s 2001 homicide in Las Vegas. The Order signed by Clark County District Court Chief Judge Elizabeth Gonzalez states:
“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.”
The 35-year-old Kirstin Lobato’s saga began with her arrest on July 20, 2001 for the homicide of homeless Duran Bailey in Las Vegas on July 8, 2001. She was 18 when arrested, so she has spent close to half her life in prison.
Dismissal of the charges was based on new expert forensic evidence presented in her habeas corpus petition filed in May 2010 that proves Bailey died on the evening of July 8. The prosecution admitted during Lobato’s 2006 trial that credible alibi evidence proves she was 165 miles from Las Vegas at her home in Panaca from the late morning of July 8 until after Bailey’s body was found that night. Lobato’s new evidence proves it is physically impossible she committed Bailey’s
The dismissal follows Judge Stefany Miley’s ruling on December 19, 2017 granting Lobato’s habeas petition and ordering a new trial. Miley ruled that Lobato’s trial lawyers provided ineffective assistance of counsel for failing to investigate and present the expert forensic entomology and expert forensic pathology evidence that proves Bailey died on the evening of July 8.
Judge Gonzalez’ dismissal with prejudice means Kirstin Lobato can never be recharged. It is also tacit recognition the Clark County DA’s Office prosecuted the wrong person for Bailey’s homicide.
The NDOC did not immediately release Lobato from its custody in spite of Judge Gonzalez’ Order. The issue was a detainer for Lobato’s gross misdemeanor conviction in March 2007 for “conspiracy to commit voluntary sexual conduct” with another female inmate at the Florence McClure Women’s Correctional Center in North Las Vegas. That case was prosecuted by the Nevada Attorney General’s Office. Upon her release from the NDOC Lobato was to begin serving “a term of incarceration in the custody of the Clark County Detention Center for three hundred sixty five (365) days to run consecutive to case number C177394 with zero days credit for time served.”
It is not well known that it is a crime for a woman to have consensual sex with another woman in Las Vegas … provided they are prisoners.
The following is a synopsis of Kirstin Lobato’s more than 16-year ordeal On July 8, 2001, 911 was notified at 10:36 p.m. a body had been found in the trash enclosure for a Nevada State Bank branch in Las Vegas across the street from the Palms Casino that was then under construction. 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 Bailey.
The prosecution’s case was based on its assumption Lobato’s statement about being assaulted at a Las Vegas hotel before mid-June 2001 was the same event as Bailey’s homicide on July 8. The justification for the assumption was 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 Judge Valorie Vega.
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.
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. Admitting Lobato was in Panaca at that time didn’t matter to the prosecution, because they argued 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 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 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 ADA Christopher Lalli. 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.
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Hans Sherrer is President of the Justice Institute aka Justice Denied that conducted a post-conviction investigation of Kirstin Lobato’s case. The Justice Institute is based in Seattle, Washington and promotes awareness of wrongful convictions, and maintains the world’s largest database of exonerated persons. Its website is, www.justicedenied.org.