IN BIZARRE MURDER HEARING, PROSECUTOR ARGUES THAT FLIES IN LAS VEGAS DON’T LIKE DEAD BODIES
LARRY AND BECKI Lobato were sitting nervously in the back row of a Las Vegas courtroom when their daughter, 34-year-old Kirstin Blaise Lobato was brought in through a side door. Dressed in a prison jumpsuit, her hands were cuffed and shackled to a thick chain that encircled her waist, while leg irons secured around her ankles gave her a truncated gait. Her dark, wavy hair brushed the tops of her shoulders. She’d trimmed it, Larry noted.
“She’s been crying,” Becki remarked.
“She’s scared shitless,” Larry replied.
Kirstin — known as Blaise — looked over her shoulder at her father and stepmother, and a slightly weary smile spread across her face. Becki smiled back, motioning to her. Moments later, the county marshal who acts as the bailiff for the court signaled for Larry and Becki to follow him into a vestibule outside the courtroom. It’s illegal for them to communicate with their daughter in any way while she’s in court, he cautioned. If they did so again, they could be charged with a gross misdemeanor — an offense punishable by up to a year in jail and a $2,000 fine. Understood, they told him.
But that’s easier said than done — especially when your daughter has been in prison for more than a decade for a murder she did not commit. And it’s even more challenging with the level of anxiety surrounding this meeting: What happens in court this week could lead to Lobato’s conviction being overturned.
Lobato was twice convicted of the grisly 2001 murder of a homeless man named Duran Bailey. Bailey was brutalized in a dumpster enclosure behind a bank just west of the Las Vegas Strip. His carotid artery was cut, and multiple teeth were knocked from his head. His blood-caked eyes were swollen shut. His anus was slashed, and his penis was amputated; it was found several feet away. He was left to bleed out on the ground, covered in a layer of trash.
Lobato has steadfastly maintained her innocence — and there are very good reasons to believe her. None of the physical evidence had tied her to the crime. And she had a solid alibi: She was at Larry and Becki’s house all day on the day of the murder, July 8, 2001, nearly three hours northeast of the city in the small town of Panaca.
Indeed, The Intercept’s 2015 investigation into the case revealed shockingly inadequate work by police detectives who ignored Lobato’s alibi and failed to consider strong evidence that implicated a far more likely suspect.
The weeklong court hearing will determine, at the very least, if Lobato deserves a new trial. At issue is whether the attorneys who defended her against the murder charge in 2006 were deficient for failing to call forensic experts to challenge the state’s theory of the case — and in particular, the assertion that Bailey was killed sometime before dawn on the day that his body was discovered.
“Our hope is that the truth comes out that she has been wrongly convicted,” Larry said, “and that she gets her freedom.”
Photo: Jessica Chou for The Intercept
THERE HAS NEVER been any logical reason to suspect that Lobato, then just 18, had murdered Bailey, who was a stranger to her.
Instead, the police zeroed-in on Lobato because of a rumor. In the spring of 2001 while she was living in Las Vegas, Lobato was attacked in the parking lot of a seedy motel on the city’s east side. A man pushed her to the ground and tried to rape her. Desperate to get away, Lobato pulled a small knife from her back pocket and slashed at the man’s groin. He recoiled, and she fled. She did not report the attack to the police, but she did tell friends in both Las Vegas and Panaca about it. The tale of Lobato’s attack spread, as rumors do, and after Bailey was killed, a woman in a town neighboring Panaca called the Las Vegas cops to tell them the version of Lobato’s story that she’d heard. The detectives hightailed it up to Panaca.
Though the details of Lobato’s attack did not match those of Bailey’s, the police ignored the glaring differences and arrested her for murder.
She was first convicted in 2002, but the case was overturned on appeal. She was tried and convicted again in 2006.
A photo of Kirstin Blaise Lobato circa 2000.
Photo: Lobato Family
In a lengthy appeal, Lobato challenged that conviction as well, in part by faulting her attorneys for failing to call expert witnesses to challenge the state’s narrative around Bailey’s time of death.
According to the state, Bailey was killed some time before dawn on July 8, 2001 and was left outside all day, beaten and bloody, before his body was discovered that night around 10 p.m. But Lobato’s appeal included affidavits from several entomologists, who pointed out that there were no signs of fly activity on Bailey’s corpse, which they would expect to see if his body had been lying outside all day in the summer heat.
Blowflies love the heat, but they aren’t active after dark (or in the cold, wind, or rain), so to the bug scientists, the lack of activity on his body meant it was far more likely that Bailey had been killed close to sunset — when even the state acknowledges that Lobato was home in Panaca.
Late last year, the Nevada Supreme Court agreed that Bailey’s time of death was “crucial” to the case and kicked it back to the trial court for further vetting. If the entomologists were right, the court concluded, then there was good reason to believe that Lobato would have been acquitted back in 2006 if her attorneys had called one as an expert witness.
In order to make their case against Lobato, the Las Vegas prosecutors had to be creative. They conceded that Lobato was in Panaca most of the day that Bailey was murdered, but insisted that she had killed him at some point in the wee hours before sunrise, then raced up the unlit two-lane mountain road in her Pontiac Fiero to her family’s home, where she cleaned herself up in time to be seen goofing around the neighborhood later that morning.
In order to sell this unlikely story to a jury, the state needed the window for Bailey’s time of death to be wide enough for it to be possible — if still implausible — that Lobato could have committed the crime.
A local medical examiner, Dr. Lary Simms, gave prosecutors what they needed. Over the course of his appearances as a witness — first at a preliminary hearing and then at each of Lobato’s trials — Simms’s opinion evolved slightly and significantly. At a preliminary hearing, he said that Bailey likely died within 12 hours of when his body was discovered — which offered scant opportunity for the state’s narrative to hold. By the time Lobato went to trial, Simms had opened the window enough to make room for the state’s theory. He maintained that position at her second trial in 2006, where he suggested, as the state had posited, that Bailey could have been killed early in the morning on July 8, 2001.
Although Simms initially declined to comment about the reasons for his varied timeline — he wrote in an email to The Intercept that everything he had to say about the matter he’d said in court — he followed up when pressed, writing that his “first and shortest estimation, which, as I recall would have excluded possible contact with Ms. Lobato, was my best estimation and the most probable.”
He hadn’t reviewed any of the entomological evidence included in Lobato’s appeal but wrote that if it was legitimate, he would revise his estimate yet again, placing Bailey’s death sometime in the late afternoon of July 8.
In other words, well before the start of the evidentiary hearing in Las Vegas earlier this month, the state’s already weak case against Lobato had lost all of its muscle.
Photo: Jessica Chou for The Intercept
There is no indication that the lack of evidence against Lobato has made any impression on the Clark County District Attorney’s Office. This spring, lawyers with the Innocence Project who are now representing Lobato asked the DA’s nascent conviction review unit to consider her case; the request was summarily rejected.
Instead, the DA’s office is barreling forward with the same singleminded aggressiveness toward Lobato that it has maintained for the last 16 years, even though its own trial expert, Simms, no longer agrees with the prosecutors’ theory of the crime. Not surprisingly, the state did not call Simms to testify at the hearing.
Leading the charge against Lobato is Sandra DiGiacomo, one of the two original prosecutors on the case. The other, Bill Kephart, is now a state district judge. Over the years, each has maintained a hard line about her guilt. DiGiacomo previously brushed off The Intercept’s questions about the failings of the case as “misinformation” spread by Lobato’s supporters. And just last year, Kephart told a local TV reporter that he had “no qualms” about how the case had been handled. It was “completely justice done,” he said. For speaking out on Lobato’s pending case, Kephart was publicly reprimanded in August by the Nevada Commission on Judicial Discipline.
Yet while a district attorney’s office will often staff up for such a high-stakes hearing in which the integrity of a notorious case is in question, the Clark County DA has gone the opposite route. All week, DiGiacomo sat alone at the prosecution table, without even an assistant or any observers from the office in the courtroom. And throughout the hearing, she was dismissive of any suggestion that the state’s case against Lobato was flawed in any way — despite mounting evidence to the contrary.
On three consecutive days, Lobato’s lawyers put on three distinguished forensic entomologists who had each independently reached the same conclusion: The lack of fly activity on Bailey’s body meant that he had been brutalized right around sunset on the day he was found, sometime around 8 p.m.
To the scientists, the lack of insect activity tells a straightforward and scientifically uncontroversial story.
Photo of the bloody pants Bailey was wearing when his body was found late on July 8, 2001.
Photo: Las Vegas Metro Police Department
Put simply, had Bailey’s beaten and bloody body been left outside in the heat all day on July 8, 2001, there would have been clear evidence of blowfly activity by the time he was found around 10 p.m. that night — most likely in the form of small, white clusters of fly eggs that would be visible in his eyes, nose, mouth, ears, and in his bloody wounds. Blowflies naturally find decomposing remains and are generally the first insects that show up to feed on the dead. They are, Gail Anderson, a professor at Simon Fraser University in British Columbia, testified, “usually the first witnesses to a crime.”
Beginning just minutes after death, flies smell the release of organic compounds associated with decay and can quickly cover long distances — typically up to 15 miles — to find the remains. “They are outfitted in the most elegantly staggering way to identify decaying meat,” Robert Kimsey, a forensic entomologist at the University of California at Davis told the court. And Bailey’s badly beaten body would have been “extremely attractive” to the insects, said Jeff Tomberlin, a professor at Texas A&M University.
The predictability of blowflies — in both behavior and life cycle — make them ideal subjects to help determine time of death, each of the entomologists told Judge Stefany Miley, who is tasked with ruling in the case. They exist in every state, “from both poles to the equator,” Anderson said, have been researched for centuries and used in forensic science since the 1800s. That blowflies are reliable first-responders to scenes of death is a “well-accepted principle,” said Tomberlin, embraced “around the world.”
Photo: Jessica Chou for The Intercept
A TALL BLONDE with a flinty expression, DiGiacomo was unimpressed by the idea of fly ubiquity. And in an attempt to discredit the entomologists, DiGiacomo took a novel, if not desperate, approach: Blowflies in Las Vegas aren’t like blowflies anywhere else, she posited — and the scientists couldn’t prove otherwise. None had done research in Las Vegas, so there was no way that they could know that Vegas flies actually behave like other flies in other places.
But presuming that there are blowflies in Las Vegas (during his testimony, Kimsey was able to rattle off five species known to live in the city, eliminating the chance that DiGiacomo could suggest they simply didn’t exist there) and that they do behave like flies everywhere else in the world, DiGiacomo pointed out that the experts still couldn’t say how manyflies live in the city, so they certainly couldn’t say how quickly they might arrive at a decomposing body or how many flies might show up.
DiGiacomo’s questions, and the notion of Las Vegas fly exceptionalism underpinning them, elicited quizzical looks from each of the scientists. “I’ve never run an experiment here,” Anderson told DiGiacomo, “but I don’t see why it should be different than anywhere else.” (Off the stand, Anderson commented to Lobato’s lawyers that if there was any indication that Vegas was somehow different from the rest of the world, entomologists would have flocked to the city to research the phenomenon.)
Thin as it is, the notion that Las Vegas and its flies are unique has now become the basis of the state’s case against Lobato. In an effort to prove her theory, DiGiacomo called just two witnesses.
Although the state had the better part of a year to prepare for Lobato’s hearing, it wasn’t until mid-September that DiGiacomo consulted with her first expert, a semi-retired forensic pathologist named Rexene Worrell.
In contrast to the fly scientists, Worrell testified that in her opinion the absence of fly activity on Bailey’s body was neither significant nor surprising, because in Las Vegas “we don’t have blowfly activity on every dead body,” she averred. Because “our climate is so different,” she said emphatically. According to Worrell, there’s nowhere else like it. (Apparently she forgot about portions of Arizona, California, and Utah, which also fall within the Mojave Desert along with Las Vegas.)
As proof, Worrell offered vague details of two death scenes she said she could remember. One involved a bus crash in January 2009 near the Arizona border, where she said bodies were left outside for more than two hours without any evidence of flies or fly eggs. The second involved a man in Las Vegas, who had apparently lain on his patio in the sun for hours after he’d killed himself. There weren’t fly eggs on that body either, she said.
Under pointed questioning by Vanessa Potkin, director of post-conviction litigation for the Innocence Project and one of three lawyers representing Lobato, Worrell was flustered and increasingly agitated. She couldn’t remember many details of either case she was offering up as proof that flies behave differently in Las Vegas’s desert. When asked about the conditions surrounding the bus incident, Worrell was vague. When asked what time sunset was on the day of the fatal wreck, Worrell actually whipped out her cellphone for a quick Google search, eliciting looks from both Judge Miley and Potkin, who glanced over her shoulder, wide-eyed, at her colleagues.
When it came time to describing the circumstances of the suicide, Worrell was completely flat-footed. She knew the man killed himself sometime in the summer and that was about it. It’s not like she’d “pulled the case file” before coming in to testify, she said. She was “just going from memory.” Potkin was flabbergasted: “We’re here because this woman is wrongly convicted,” she shot back, pointing back at Lobato. DiGiacomo quickly objected before Potkin could finish her sentence. Potkin offered an apology for her outburst, but Miley seemed to understand her frustration: The state was now defending Lobato’s conviction based solely on conjecture.
Worrell essentially went on to prove just that when she tried to rehabilitate her credibility. She remembered the suicide case because it “didn’t make sense to her,” she told the court. Why was that? Potkin asked. Because the man was “supposedly” outside all day, and there was no bug activity on him, she replied.
Photo: Jessica Chou for The Intercept
Regardless, Worrell told DiGiacomo that the bug evidence wasn’t the best way to determine time of death anyway. The better way, she said, was to determine the amount of potassium found in the vitreous fluid extracted from Bailey’s eyes at autopsy. The level of potassium increases after death, so by applying a few simple calculations, one can determine how many hours it has been since death has occurred, she testified. Employing this method, Worrell said she came up with a time of death as early as 22 hours before Bailey’s body was found, meaning he could have been killed as early as midnight on July 8. The error rate for the calculations, she said, is plus or minus 20 hours.
Potkin was skeptical: Could Worrell explain the biological process she was measuring or the formulas she used to do so? Worrell couldn’t. “I don’t need to understand,” she snapped. “I don’t have time to do that.”
Of course, understanding the science of death might actually be helpful in determining when it occurred. Dr. Andrew Baker, a medical examiner who Potkin called to testify, spent considerable time on the witness stand using bell-curve charts to help explain the mechanics behind rigor mortis — the process of muscle contraction and release after death. After reviewing crime scene and autopsy photos, the work of the coroner’s investigator, Simms’s autopsy, and calculating the rate of rigor mortis, Baker concluded that Bailey was killed right around 8 p.m. on July 8.
It wasn’t until after he’d done his review that he read the entomologists’ reports. Each of the entomologists also testified that they didn’t read the opinions of their colleagues until after they’d reached their own conclusions. The opinions all “align perfectly,” Baker noted. “It’s a nice validation.”
The dumpster area where Duran Bailey’s body was found. A bloody footprint leaving the crime scene did not match Lobato’s shoes or shoe size.
Photo: Las Vegas Metro Police Department
IN HIS 35 years of practicing criminal law, David Schieck said that it was rare for a homicide case to hinge on a time of death estimation. But in Lobato’s case, it was “definitely the key issue,” he testified on the first day of the hearing. Schieck, a retired public defender, was one of three lawyers who represented Lobato at her 2006 trial. Even though Bailey’s time of death was critical to the case, no one from the defense team consulted with a forensic entomologist to try to pin it down as much as possible. It was an error, he said. And it was not a strategic move — an important element in determining whether a lawyer has provided deficient representation. Strategic decisions are almost unassailable on appeal while matters that point to incompetence are open to challenge. “I wish I could say it was a strategic decision,” Schieck testified, “but it wasn’t.”
Of the three lawyers on Lobato’s team, Schieck was the most experienced, he admitted. And he understood the value of forensic evidence and expert testimony — and he was familiar with entomology. Yet it didn’t occur to him that the lawyers should consult with an entomologist, he said. And he was upset that he didn’t grasp the significance of the absence of bug activity on Bailey’s body. Given the strong alibi evidence that the team had, Schieck said he was certain that Lobato “had to be in Panaca” at the time that Bailey was killed. Still, he acknowledged, the “alibi is only good if you have a time of death.”
In cross-examining Schieck, DiGiacomo wondered if he’d seen other dead bodies in the Las Vegas “without bug activity” on them. Sure, he said, when a victim’s body is found shortly after death — like in a drive-by shooting, he suggested. Or, perhaps, in Bailey’s case. If the state’s theory of the case was correct, and Bailey had been outside all day, then bug evidence is “something that should’ve been present,” he said. And securing expert consultation is something “that I should’ve pursued,” he said.
“Isn’t it true that you can find an expert to say almost anything?” DiGiacomo asked.
“Not a good one,” Schieck replied.
Judge Miley is expected to issue a decision in the case in November.
copiado https://theintercept.com
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