PUBLISHER'S NOTE: This up=dated entry, published today, December 13, 2024, is a thorough analyses of the complex factual, forensic issues and police abuses that define the Kristin Lobato case. Given that there are four contributing factors, Kristin Lobato certainly had an uphill battle.
Harold Levy; Publisher: The Charles Smith Blog.
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PASSAGE OF THE DAY: "On December 19, 2017, Judge Miley vacated Lobato’s convictions and ordered a new trial. The judge ruled that Lobato’s trial defense attorneys had provided in an inadequate legal defense by failing to call an expert to challenge the prosecution’s estimate of the time of Bailey’s death. On December 29, 2017, the prosecution dismissed the charges."
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NATIONAL REGISTRY OF EXONERATION ENTRY: By Maurice Possley; Updated on December 12, 2024. Contributing factors: "False Confession, False or Misleading Forensic Evidence, Perjury or False Accusation, Inadequate Legal Defense."
GIST: "At about 10 p.m. on July 8, 2001, a man foraging through garbage dumpsters behind a bank in Las Vegas, Nevada, discovered the mutilated body of a man. His death had been particularly violent.
He had been badly beaten about the face and head. Six teeth were knocked out. He had been stabbed many times and his throat was slashed. In addition, after he was dead, his rectum had been slashed. His penis had been cut off and was found several feet away.
While police were still on the scene, a woman approached and said that a man she knew as "St. Louis" and "Duran" raped her on July 1. She wanted to know if the body they found was that man. At that point, police had not identified the victim. Later, they would confirm that the victim was 44-year-old Duran Bailey, who was also known as “St. Louis.” Although the woman said that Bailey had threatened to kill her if she told anyone, she did report the assault to police on July 5, 2001—three days before Bailey was found murdered.
Despite evidence that she told a number of male neighbors about the attack and the possibility that they retaliated against Bailey, police didn’t pursue that in their investigation.
That’s because 12 days later, on July 20, Laura Johnson, a juvenile probation officer in Pioche, a 3-hour drive from Las Vegas, called to report a rumor. Johnson had heard that 18-year-old Kirstin Blaise Lobato was telling people that she recently had cut off a man’s penis in Las Vegas.
Detectives immediately drove to meet Johnson. She said that she heard the account from a friend who had been Lobato’s teacher. The detectives then located Lobato and interviewed her. Less than three hours after the interview began, police arrested Lobato. The contents of her interview became the linchpin of a prosecution for Bailey’s murder.
Lobato denied killing Bailey. Prior to her trial, she took a polygraph examination, after which the examiner said she was truthful when she denied involvement in the crime. She rejected an offer to plead guilty in return for a three-year prison sentence.
In May 2002, she went to trial in Clark County Superior Court. The time of Bailey’s death was critical for the prosecution since Lobato was seen by witnesses in Panaca, Nevada, nearly 170 miles from Las Vegas, during the morning and during the day of July 8. Dr. Larry Simms, a board certified forensic pathologist, who had testified at a preliminary hearing that he estimated Bailey was killed about 12 hours prior to the discovery of the body at 10 p.m., now testified, in reponse to prosecution questions, that Bailey’s death could have occurred as much as 18 hours earlier.
Detective Thomas Thowsen testified that he began his interview with Lobato by saying he understood that she had recently defended herself from a sexual assault in Las Vegas. When she did not respond, Thowsen said he was aware that she had been sexually molested as a child. He told the jury that Lobato then began to weep and said, “I didn’t think anybody would miss him.”
Thowsen said Lobato told him she had been in Las Vegas and that she used her butterfly knife to defend herself when a black man tried to rape her. She said she didn’t know if she severed the man’s penis, but that when she managed to escape, he was lying on the ground, crying. Thowsen said that when asked if she hit the man with anything else, she said she had not, but that she kept a baseball bat in her car.
Thowsen said Lobato was unclear on the timing of the incident because she had been consuming drugs.
The prosecution’s theory was that Lobato, high on methamphetamine, sought out Bailey for more and agreed to trade oral sex for drugs. However, she changed her mind and when Bailey assaulted her, she fought back with her knife and the bat from her car.
Korinda Martin, an inmate at the Clark County Detention Center, testified that while awaiting trial, Lobato had bragged that she amputated a man’s penis and placed it “down his throat.” Martin testified that Lobato was worried that blood might be found in her car because she had hit the victim in the face. Martin also said that Lobato told her that she had picked up the victim—whom Lobato called “Darren”—to get methamphetamine. When he wanted to engage in sex first, she stabbed him in the rectum. Martin said Lobato bragged that while what she did was overkill, he deserved it.
During cross-examination, Lobato’s defense attorney sought to question Martin, who had prior convictions for robbery and coercion, about some fraudulent letters that had been sent to the judge in Martin’s case. The defense contended that Martin had orchestrated the letters, which falsely said Martin was pregnant and that the author was willing to take responsibility for Martin if she were released. The trial judge refused to allow questioning about the letters even though an expert had concluded that the handwriting was Martin’s.
Lobato testified that she had used her knife to defend herself from a sexual assault in Las Vegas, but that the incident happened in May—several weeks before Bailey was murdered. She said that she thought she cut the assailant in the groin and then escaped. She denied knowing Bailey or killing him. Lobato said that she expressed remorse during her interview with Thowsen because she believed he was telling her that the man she believed she had cut had subsequently died.
The defense also presented witnesses who testified that she was in Panaca, the town where she grew up, on the morning of July 8—about 12 hours before Bailey’s body was found and throughout the rest of the day.
The prosecution argued that Lobato killed Bailey during the early morning hours of July 8, and then drove to Panaca in time to be seen by her alibi witnesses.
On May 18, 2002, the jury convicted Lobato of first-degree murder and sexual penetration of a dead body. She was sentenced to 40 to 100 years in prison.
In September 2004, the Nevada Supreme Court reversed the convictions and ordered a new trial. The court ruled that Lobato’s defense attorney should have been permitted to cross-examine Martin about the letters. “The proffered letters and extrinsic evidence relating to them confirmed Martin’s desperation to obtain an early release from incarceration and her willingness to adopt a fraudulent course of action to achieve that goal,” the court ruled, noting that Martin had admitted during testimony that she would have done “whatever it took” to get out of jail.
Lobato went to trial a second time in September 2006. Martin did not testify at this trial and neither did Lobato.
The forensic testimony included evidence that 22 fingerprints had been found at the scene, but none matched either Lobato or Bailey. A DNA analyst testified that cigarette butts recovered from the scene contained an unidentified male profile on one butt and a combination of Bailey’s DNA and a different male’s on another butt. DNA analysis of chewing gum found a mixture of Bailey’s DNA and a third unidentified person. And DNA analysis of a pubic hair found on Bailey’s body revealed the DNA of a fourth unidentified male. Lobato’s DNA was not found anywhere.
Dr. Simms testified and told the jury that death could have occurred 12 to 18 hours before 3:50 a.m. on July 9, 2001, when Bailey was officially pronounced dead. At Lobato’s first trial, he testified that death occurred 12 to 18 hours before 10 p.m. on July 8, when the body was discovered.
On October 6, 2006, the jury convicted Lobato of the lesser charge of voluntary manslaughter, as well as sexual penetration of a dead body. She was sentenced to 13 to 45 years in prison.
In February 2009, the Nevada Supreme Court upheld the convictions.
The following year, Lobato filed a state law petition for a writ of habeas corpus outlining dozens of grounds to overturn her convictions. In particular, the petition argued that because there was no evidence of blowfly activity on Bailey’s body, he likely was killed after 8 p.m. on July 8—only a couple of hours before he was found and when even the prosecution agreed Lobato was in Panaca.
The habeas petition was supported by sworn affidavits from three forensic entomologists. All three agreed that in the hot climate of Las Vegas, there would have been blowfly activity on Bailey’s body if he had been exposed all day—as the prosecution’s medical examiner had testified.
The habeas petition also contained new alibi evidence, including an affidavit from Lobato’s friend. The friend said that in late May 2001—weeks before Bailey was killed—she traveled to a Shakespeare festival with Lobato. During the car ride, Lobato told her how she had recently fended off a sexual assault in Las Vegas by pulling out her knife and stabbing the man in the groin.
The defense also filed a petition under the Nevada genetic testing statute after the Innocence Project agreed to pay for such testing.
In March 2011, the judge denied the habeas petition seeking an evidentiary hearing on the multiple issues, including newly discovered evidence regarding the lack of blowfly activity. The judge ruled that the forensic expert affidavits were insufficient because there was no opportunity for the state to cross-examine the experts. The motion for DNA testing was denied as well, and in 2012 the Nevada Supreme Court dismissed an appeal of the dismissal of the testing motion.
The appeal of the denial of the habeas petition was not decided until more than five years later. In November 2016, the Nevada Supreme Court reversed the dismissal of the habeas petition and ordered an evidentiary hearing on the issue of the time of Bailey’s death. The court was critical of the trial judge’s decision to deny a hearing because the forensic expert affidavits were not subject to cross-examination, noting that there was no cross-examination because the judge had refused to grant a hearing.
In 2009, Hans Sherrer, publisher of the magazine Justice Denied, contacted forensic entomologist Dr. Gail Anderson, who agreed to work on the case pro bono. She subsequently submitted an affidavit that in her opinion the victim had died within two hours of being found, which would have been after sunset.
In 2010, Lobato petitioned for a new trial based on Anderson’s affidavit and that of two other forensic entomologists. The petition was denied in 2011.
Ultimately, on appeal, Lobato was granted a hearing. In October 2017, Clark County Superior Court Judge Stefany Miley held a hearing during which Innocence Project lawyers presented testimony from Anderson and two other forensic entomologists—Dr. Jeffrey Tomberlin and Dr. Robert Kimsey. The experts all testified that they had independently concluded that based on the weather conditions in Las Vegas on July 8, 2001, and based on the outdoor location where Bailey’s body was found, they would have expected to see his body covered with blowfly eggs shortly after his death.
The experts testified that blowflies arrive very shortly after death and lay hundreds of easily observable eggs in a freshly dead body’s orifices and wounds. Given that Bailey’s body had no blowfly eggs on it, the experts concluded that he died close in time to when his body was discovered around 10 p.m. on July 8—a time when Lobato was three hours away with her family in Panaca.
Dr. Andrew Baker, a forensic pathologist, also testified that based on the recorded rigor mortis changes in Bailey’s body between when his body was discovered and when his autopsy was conducted, he likely died during the early evening hours of July 8, 2001.
On December 19, 2017, Judge Miley vacated Lobato’s convictions and ordered a new trial. The judge ruled that Lobato’s trial defense attorneys had provided in an inadequate legal defense by failing to call an expert to challenge the prosecution’s estimate of the time of Bailey’s death.
On December 29, 2017, the prosecution dismissed the charges.
In July 2019, Lobato filed a federal civil rights lawsuit against the Las Vegas police department and two detectives. In December 2019, she filed a claim for state compensation.
In December 2024, a federal jury awarded Lobato $34 million in damages."
The entire post can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog.
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
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FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
