The Nevada Supreme Court’s ruling in Kirstin Blaise Lobato’s case has been awaited for more than seven months, since oral arguments on September 9, 2014. The Court is considering Ms. Lobato’s appeal of former Clark County District Court Judge Valorie Vega’s denial of her habeas corpus petition.
Ms. Lobato was convicted in October 2006 of charges related to the death of homeless Duran Bailey in a Las Vegas banks’ trash enclosure on July 8, 2001. Ms. Lobato asserts she is actually innocent and was at her home 165 miles from Las Vegas when Bailey died.
Local, national, and international reports about Ms. Lobato’s case as a possible miscarriage of justice have overlooked the compelling evidence she was convicted of crimes that did not even occur.
Bailey’s autopsy by Clark County Medical Examiner Lary Simms determined he “died as a result of BLUNT HEAD TRAUMA. Significant contributing conditions include MULTIPLE STAB AND INCISED WOUNDS.”
Simms also determined, “The anus and perineum demonstrate a complex, generally longitudinal, incised wound.”
Ms. Lobato was charged with two crimes. Count I charged her with “murder,” and Count II charged her with “sexual penetration of a dead human body.” The prosecution’s case was based on the scenario that in quick succession there was a violent altercation in the trash enclosure during which Bailey was killed, a postmortem injury was inflicted to his rectum, and his assailant left after covering him with items from an adjacent dumpster.
Regarding Count I, there is undisputed medical evidence Bailey’s fatal head injury occurred around two hours before his “stab and incised wounds” were inflicted in the trash enclosure. Dr. Simms testified during Ms. Lobato’s trial that Bailey’s fatal “blunt head trauma” occurred about two hours before his death. (Details are in Ground 9 of Ms. Lobato’s habeas petition filed in the Clark County District Court.)
The unsightly injuries Bailey received in the trash enclosure are misleading, because they distract from the fact they merely hastened his imminent death from his fatal head injury.
After Bailey experienced his head injury it is known he felt well enough to eat a meal because his autopsy found “digesting meat and vegetable food particles” in his stomach. Ms. Lobato’s habeas petition includes undisputed medical evidence vegetables can take 30 to 50 minutes to digest. So Bailey ate supper between the occurrence of what was his fatal head injury, and the later altercation in the trash enclosure. Ms. Lobato’s jury didn’t know about the undigested meat and vegetables in Bailey’s stomach and its relationship to his fatal head injury.
The prosecutors disregarded Dr. Simms’ testimony that Bailey’s fatal head injury occurred hours prior to the injuries he received during the brief altercation in the trash enclosure, and deceptively argued to Ms. Lobato’s jury that all his injuries occurred during the same incident. The prosecution not only knew that is not true, but that all Bailey’s assailant(s) accomplished in the trash enclosure was to hasten his imminent death. Yet Ms. Lobato wasn’t charged with or convicted of hastening Bailey’s death — but causing it.
Furthermore, Metro PD has not spent one minute investigating to identify the person responsible for Bailey’s fatal head trauma. It is possible there is no person to find, because his head trauma may have resulted from an accidental fall. Actress Natasha Richardson, for example, died in 2009 from head trauma caused by an accidental fall while skiing.
Regarding Count II, there is unrebutted medical and photographic evidence that Bailey was alive when he experienced his rectum injury.
Ms. Lobato’s habeas petition includes crime scene photos showing Bailey bled profusely from multiple injuries after he experienced his rectum injury, which indicates his heart was pumping blood. Her petition also includes forensic pathologist Dr. Glenn Larkin’s sworn statement, “It is my opinion to a reasonable medical and scientific certainty that Bailey survived either conscious or not, a short time after being attacked.” That supports Dr. Simms’ medical conclusion when he testified during Ms. Lobato’s preliminary hearing in 2001 that Bailey’s injury to his “rectum was ante-mortem” (before death). That evidence was unknown to Ms. Lobato’s jury. (Details are in Ground 8 of Ms. Lobato’s habeas petition.)
The new evidence Bailey was alive when he experienced his rectum injury supports that Count II is based on not just a non-existent, but an impossible violation of NRS 201.450 by whoever assaulted Bailey.
The statute cannot be applied to Bailey because it mandates sexual penetration of a deceased person.
The evidence that Ms. Lobato was prosecuted for crimes that didn’t occur suggests the Clark County District Attorney’s Office was so concerned with securing her convictions that it did not vet her case to determine if she is guilty … or in fact actually innocent.
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Hans Sherrer is president of the Justice Institute based in Seattle, Washington that promotes awareness of wrongful convictions and conducted a post-conviction investigation of Ms. Lobato’s case. Its website is, www.justicedenied.org.