By Hans Sherrer
Special to the Las Vegas Tribune
Is it in the public interest for a person to be imprisoned for crimes
for which there is scientific evidence the person didn’t commit? The
Nevada Supreme Court is currently considering whether new scientific
evidence of Kirstin Blaise Lobato’s actual innocence warrants
overturning her convictions.
Duran Bailey was a homeless man whose body was found around 10 p.m. on
July 8, 2001 near the Las Vegas Strip in a bank’s trash enclosure.
Bailey’s autopsy determined he died from Blunt Head Trauma, and he had
many bloody wounds.
Kirstin Lobato was convicted on October 6, 2006 of voluntary
manslaughter and other charges related to Bailey’s homicide. She was
sentenced to 13 to 35 years in prison.
An undisputed fact during Kirstin’s trial is that she was at her home
in Panaca, Nevada, 165 miles north of Las Vegas on July 8, 2001, from
at least 11:30 a.m. and probably from 10 a.m., until after Bailey’s
body was found that night. A Nevada DOT supervisor testified the
driving time from Las Vegas to Panaca is about three hours.
Since Kirstin couldn’t have been in Las Vegas earlier than 8:30 a.m.
(11:30 minus 3 hours), and probably no earlier than 7 a.m. (10 a.m.
minus 3 hours), it is physically impossible she committed Bailey’s
homicide if he died after 8:30 a.m. on July 8; and there is even a
reasonable doubt she could have done so if he died between 7 and 8:30
To establish Bailey could have died before 7 a.m., the prosecution
introduced the testimony of Clark County ME Dr. Lary Simms. The jury
relied on his testimony that it is possible Bailey died before 7 a.m.
to convict Kirstin.
After Kirstin’s convictions were affirmed on appeal in 2009, a
post-conviction investigation of her case was undertaken to discover
new evidence, including more precisely determining Bailey’s time of
The science of forensic entomology dates back more than 1,000 years.
It is known “Blow flies are attracted to human remains, and any other
carrion or meat product, in order to lay their eggs. Eggs are laid
within minutes of the remains being located by blow flies, meaning
that they are laid within a very short time after death, usually
minutes. …Therefore, a bloody wound is extremely attractive to
female blow flies and they would be expected to lay large numbers of
egg masses on the body. …Blow flies are diurnal animals, meaning
they are only active during daylight hours.” (Report of Dr. Gail S.
Anderson, Dec. 17, 2009)
Three forensic entomologists were provided with reports, weather data,
testimony, and photographs related to Bailey’s death. They
independently determined no insect eggs are visible on Bailey’s body,
and thus to a reasonable scientific certainty, he died after sunset at
8:01 p.m. — and he most probably died after full dark at 9:08 p.m. The
new scientific forensic entomology evidence establishes it is
physically impossible Kirstin committed Bailey’s homicide because it
is undisputed she was home in Panaca at 8 p.m.
A number of cockroaches were in a beer can found within arms’ reach of
Bailey’s body. The three forensic entomologists noted in their reports
there were no insect bites on Bailey’s body. Cockroaches feed on human
flesh, and unlike flies, they are nocturnal. Consequently, Bailey
likely died shortly before his body was discovered since cockroaches
would have feasted on his body if it had lain in the dark trash
enclosure for any length of time.
Dr. Simms did not consider the absence of insect eggs or insect bites
when he testified about Bailey’s time of death, even though
considering their presence or absence is necessary to reliably
determine when he died.
The new forensic entomology evidence renders Dr. Simms’ testimony as
lacking any credibility about Bailey’s time of death and that his body
could have lain in the trash enclosure where he was killed for up to
18 hours before being discovered.
In May 2010, Kirstin filed a habeas corpus petition in the Clark
County District Court that included a request for a new trial based on
her new evidence that Bailey died when she was 165 miles from Las
The State’s defense to Kirstin’s new evidence is the forensic
entomologists examined photos of Bailey’s body, while Dr. Simms
personally saw it. Forensic entomologist Dr. Gail Anderson’s reply to
the State’s defense exposed it has no scientific merit or rational
basis, when she explained examining digitized photographs “…allows
the observer to increase the size of the image at will, almost as if
one were using a microscope.” (Reply of Dr. Anderson, Sept. 7, 2010.)
The new evidence that Bailey died in Las Vegas when it is known that
Kirstin was in Panaca, is consistent with the absence of any physical,
forensic, eyewitness, surveillance, documentary, or confession
evidence she was in Las Vegas on July 8, 2001, and was Bailey’s
A key unanswered question is if the new scientific evidence showing
that Kirstin Lobato is imprisoned for a crime it is physically
impossible for her to have committed will matter to the Nevada Supreme
Court, which is now considering the appeal of her trial judge’s denial
of her habeas corpus petition.
This is a condensed version of an article available online
editor and publisher of Justice Denied — the magazine for the wrongly
convicted (www.justicedenied.org). He can be emailed at
By Hans Sherrer