By Hans Sherrer
Editor and Publisher of Justice Denied
Kirstin Blaise Lobato’s habeas corpus petition was granted and a new trial was ordered on December 19, 2017, based on new forensic evidence supporting her innocence. Clark County District Court Judge Stefany Miley’s ruling stated: “Defendant’s Petition for Writ of Habeas Corpus is GRANTED… Defendant’s request for new trial is GRANTED.”
Kirstin Lobato’s habeas petition was granted 7 years, 7 months, and 14 days after she filed it on May 5, 2010.
With the granting of a new trial, Ms. Lobato can file a motion for her release on bail pending the outcome of Judge Miley’s ruling.
Clark County District Attorney Steven Wolfson has four options:
1. He can appeal Judge Miley’s ruling to the Nevada Supreme Court;
2. He can recognize he will likely lose an appeal and proceed with a retrial;
3. He can honorably recognize he will likely lose a retrial, and move to end the case by dismissal of the charges against Ms. Lobato with prejudice;
4. He can try to pressure her into taking a plea deal to resolve the case, which would eliminate her ability to file a successful federal civil rights lawsuit to be compensated for her more than 16-year ordeal.
Ms. Lobato was convicted by a jury in 2002 of first-degree murder and other charges related to the homicide of homeless Duran Bailey in Las Vegas on July 8, 2001. In 2004 the Nevada Supreme Court granted her a new trial based on errors by the trial judge. She was retried in 2006
and convicted by a jury of voluntary manslaughter and other charges.
She is currently serving her sentence of 13 to 35 years in prison.
Ms. Lobato’s alibi defense during both trials was she was home in Panaca — 165 miles north of Las Vegas — on July 8, the day of Bailey’s death.
Her 2006 convictions were affirmed by the Nevada Supreme Court and became final in October 2009.
Justice Denied began an intensive re-investigation of her case to find new evidence that could be incorporated into a habeas petition. She needed to file her petition within a year (Oct. 2010) for it to be timely under both Nevada law and the federal AEDPA.
Justice Denied’s investigation discovered a plethora of new evidence.
That included new evidence by three forensic entomologists and a forensic pathologist that Bailey died after 8 p.m. on July 8. The entomologist’s expert opinions were based on the absence of blow fly eggs on his body, which meant he died after sunset when flies become dormant. The pathologist’s expert opinion was based on the condition of Bailey’s body at the crime scene and during his autopsy.
That was dynamite new evidence because during Ms. Lobato’s 2006 trial the prosecution conceded during its closing argument that her alibi evidence establishes she was in Panaca from the late morning of July 8 until after the discovery of Bailey’s body was reported in a 911 call at 10:36 that night. The prosecution’s case was based on their contention Bailey died in Las Vegas in the very early morning of July 8 — so it freely admitted her evidence proved she was in Panaca after
that. Ms. Lobato’s trial lawyer’s presented no expert evidence about Bailey’s time of death.
The habeas petition Ms. Lobato filed in May 2010 included 79 claims for a new trial. Two of those claims asserted her trial lawyers provided ineffective assistance of counsel for failing to investigate and present the forensic entomology and forensic pathology evidence that Bailey died after 8 p.m. Her petition asserted the jury would not have found her guilty if it had known the evidence Bailey died at a time the State acknowledged she was 165 miles from Las Vegas.
Her petition was denied in August 2011 by Judge Valorie Vega, and she appealed.
More than five years later, in November 2016, the Nevada Supreme Court ordered an evidentiary hearing to determine if Ms. Lobato’s trial lawyers provided ineffective assistance of counsel for failing to investigate and present the forensic entomology and forensic pathology evidence discovered after her trial that establishes Bailey’s time of death was about or after 8 p.m. on July 8, 2001.
To prevail and be granted a new trial Ms. Lobato had to prove two things during the evidentiary hearing: 1) That the performance of her trial lawyers “fell below an objective standard of reasonableness” by their failure to investigate or present the forensic time of death evidence; and, 2) That she was prejudiced because there is a reasonable probability the jury would have reached a different verdict if her lawyers had presented the forensic evidence establishing Bailey died when she had credible alibi evidence she was in Panaca.
Clark County District Court Judge Stefany Miley presided over a five evidentiary hearing held from October 9 to October 13, 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.
At the conclusion of the hearing Judge Miley said she expected to issue a written ruling by mid-November. The wait of an extra five weeks was worth it because in the late afternoon of December 19, 2017 she issued her ruling that “Defendant’s Petition for Writ of Habeas Corpus is GRANTED… Defendant’s request for new trial is GRANTED.”
Excerpts of Judge Miley’s DECISION & ORDER follows:
1. Deficient Performance To meet the deficient performance prong, a petitioner must demonstrate that counsel’s representation “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688.
a. Defendant’s Counsel Failed To Provide Any Evidence Regarding Decedent’s Time Of Death.
Defendant’s alibi evidence illustrates that on July 8, 2001, from 11:30 am at latest until later that night, Defendant was in Panaca. …
Defendant contends that she could not have killed Decedent because Decedent was killed after 11:30 am on July 8, 2001, when Defendant’s alibi evidence places her in Panaca.
Furthermore, given Defendant’s strong alibi evidence, Defendant’s counsel needed to narrow the time of Decedent’s death as much as possible. Nonetheless, the only evidence presented at Defendant’s trial regarding Decedent’s time of death was the State’s medical examiner’s testimony, which evolved in the State’s favor between the preliminary hearing and trial.
Accordingly, COURT FINDS, Defendant’s counsel was deficient for failing to introduce any evidence regarding Decedent’s time of death.
b. Defendant’s Counsel Failed To Meaningfully Consult With A Forensic Pathologist.
COURT FINDS, had Defendant’s counsel meaningfully consulted with a forensic pathologist, Defendant would have been provided with credible testimony narrowing Decedent’s time of death. Accordingly, COURT FINDS, Defendant’s counsel was deficient for failing to consult with a forensic pathologist.
c. Defendant’s Counsel Failed To Consult With A Forensic Entomologist.
COURT FINDS, according to Defendant’s highly experienced
entomologists, as well as the State’s entomologist, blowflies are dependent upon laying their eggs in protected, nutrient-rich areas of freshly deceased bodies, which are typically found in the head orifices (eyes; nose; mouth).
COURT FURTHER FINDS, according to Defendant’s entomologists, as well as the State’s entomologist, blowflies are typically the first colonizers of carrion and it is highly unlikely that Decedent’s body could have been lying outdoors, in optimal temperatures (80-to-mid-90s
F), in optimal weather conditions (no precipitation or high winds) for an entire day, and not have any blowfly colonization.
COURT FURTHER FINDS, all three of Defendant’s forensic entomologists, as well as the State’s entomologist, testified that had Decedent’s body been present at the scene throughout the day on July 8, 2001, they would expect to see heavy blow fly colonization, in the form of visible, large clumps of eggs, starting in the head orifices, and
continuing to exposed wounded areas.
COURT FURTHER FINDS, all three of Defendant’s entomologists testified that Decedent died at a time that Defendant had strong alibi evidence placing her in Panaca.
Accordingly, COURT FINDS, had Defendant’s counsel meaningfully consulted with a forensic entomologist, Defendant would have had credible testimony narrowing Decedent’s time of death.
Finally, COURT FINDS, due to the importance of narrowing Decedent’s time of death, Defense counsel’s failure to consult with a forensic entomologist fell below an objective standard of reasonableness and was deficient.
2. Defendant’s Counsel’s Performance Prejudiced Defendant
With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. at 691-696.
Here, the jury received no physical evidence linking Defendant to the Decedent’s murder.
COURT FINDS, considering the totality of the evidence, had Defendant’s counsel provided evidence that narrowed Decedent’s time of death, it would have, within a reasonable probability, made a difference in the outcome of the trial.
Accordingly, COURT FINDS, Defendant’s counsel’s deficient performance prejudiced the outcome of Defendant’s case.
For the foregoing reasons, COURT ORDERS, Defendant’s Petition for Writ of Habeas Corpus is GRANTED.
COURT FURTHER ORDERS, Defendant’s request for new trial is GRANTED.
COURT FURTHER ORDERS, as this Court has found a legal basis exists to grant Defendant’s Petition for Habeas Corpus and request for a new trial, this Court will not address Defendant’s claims for actual innocence/new evidence.
COURT FURTHER ORDERS, matter set for Status Check regarding Setting of Trial on January 24, 2018, at 9:30 a.m.
Dated this 19th day of December, 2017.
Honorable Stefany A. Miley