Clark County Eighth Judicial District Court Judge Stefany Miley reversed the murder conviction on Dec. 19, 2017 of Kirstin Blaise Lobato, who had been previously convicted of the 2001 murder of a homeless man and the mutilation and amputation of his penis.
Her ruling was the catalyst for Lobato to be freed from prison after some 16 years. On Dec. 29, 2017, upon a motion by the Clark County District Attorney’s Office, Clark County District Court’s Chief Judge Elizabeth Gonzalez dismissed all charges against Kirstin Blaise Lobato and ordered her to be released from prison. She had spent 16 years locked up. She was 18 when she was arrested and charged with the murder.
In her 55-page ruling on Dec. 19, Judge Miley, reversed Lobato’s murder conviction after a five-day hearing earlier in October in Judge Miley’s courtroom. The judge had found that Lobato’s defense lawyers violated her constitutional right to effective legal representation in two previous trials by failing to call pathology and entomology experts regarding the victim’s time of death, which would have supported her strong alibi. At the time, Lobato had served nearly sixteen years in prison despite compelling evidence of her innocence.
Kirstin Blaise Lobato’s case has been described this way: The body of the victim, 44-year-old Duran Bailey, was found beaten and bloodied behind a dumpster, partially disrobed, with his severed, mutilated groin wrapped in plastic, in a spot not far from the Las Vegas Strip around 10 p.m. on July 8, 2001. His eyes were badly swollen and shut, his skull was cracked, and a number of his teeth had been knocked out of his mouth. His carotid artery was cut, and his penis had been removed.
According to the Las Vegas Metro Police Department (LVMPD), the crime scene was full of evidence, none of which, however, actually linked Lobato to the July 2001 mutilation/murder. In fact, police detectives relied on Lobato’s own information about a similar incident that had happened to her months before — an attempted rape attack during which she slashed out at her attacker in defense with a knife, according to her statements given to the Metro police.
She had said she believed she may have struck her attacker in the groin. This attack had nothing to do with the death of Bailey months later. But it fit the narrative the police were looking for, even though Lobato provided what seemed to be a solid alibi. The police disregarded that alibi and arrested and charged her anyway. The alibi she provided of being home in Panaca, Nevada at the time of the attack — three hours away and corroborated by many— was explained away at trial thanks to the medical examiner widening the window for the time of death. Lobato had said that at the time of the murder, she was at her parents’ home in Panaca, a small Nevada town near the Utah border three hours northeast of Vegas.
The prosecutors in the case, while conceding that Lobato was in Panaca, argued that she could have committed the murder and then driven to Panaca before Bailey’s body was discovered. They argued she savagely beat the homeless man to death, mutilated and cut off his penis, and then hopped in her car to drive three hours to Panaca. Testimony in court placed her in Panaca in the late morning where she was seen bopping around the neighborhood in a four-wheeler.
The timeline story the prosecutors put forward seemed to be quite a stretch. Clark County Medical Examiner, Lary Simms performed the autopsy on Bailey’s body and came up with an initial time of death that would have excluded Lobato from being able to commit the crime and then get all the way to Panaca by late morning. The murder was in 2001, and by the time Simms testified at the 2006 trial, he had expanded the time-of-death window to be wide enough to enable prosecutors to charge Lobato with the murder-mutilation.
Lobato’s defense did very little to counter the prosecutor’s now convenient time-of-death determination. Lobato would later highlight this as an issue in an appeal to the Nevada Supreme Court. It was Lobato’s argument that her lawyers should have called expert forensic pathologists or entomologists to narrow Bailey’s time of death. Entomologists are biological scientists who specialize in the study of insects.
In her appeal to the state supreme court, Lobato argued that her defense’s failure to attack or defend the time of death scenario put forward by the prosecutors rendered her counsel constitutionally deficient. The appeal included affidavits from several entomologists who strongly challenged Simms’s estimation.
Time of death was all-important at this trial. It would mean conviction or exoneration for Lobato.
In November 2016, the Supreme Court ruled unanimously that a lower court should fully vet her claim. That’s how the case ended up in Judge Miley’s courtroom. Lobato’s alibi evidence was strong, Judge Miley concluded, so if her scientific evidence was credible, it would certainly cause a jury to doubt her guilt, they reasoned. Bailey’s time of death was “a crucial aspect” of the case.
That hearing was held in Miley’s courtroom at the Regional Justice Center in downtown Las Vegas, which lasted a week. Represented by lawyers from the Innocence Project — including the famed constitutional attorney, Alan Dershowitz— in her appeal, Lobato’s new legal team presented strong evidence that the state’s time-of-death estimation was off by hours. Their argument centered around blowflies. A blowfly is a type of fly that lay their eggs in rotting meat, dung, or in open wounds.
According to three distinguished forensic entomologists presented by Lobato’s lawyers, there was no way that the victim’s bloody body could have been left outside all day in the Vegas heat before being found. The temperature in Las Vegas on July 8, 2001 was upwards of 100 degrees. Had the body been left outside with the wounds and mutilation it sustained on that day in that heat, the attorneys argued, it would have been covered with blowfly eggs. Blowflies are, as a story in the The Intercept’s reporting on the trial phrased it: “nature’s ubiquitous first responders to scenes of death.”
But there was no such evidence on Bailey’s body, leading the epidemiologists to conclude that Bailey had been killed around sunset that evening, as the story in The Intercept phrased it, ”after the blowflies had wrapped up their work for the day.”
Prosecutor Sandra DiGiacomo argued that the scientists hadn’t studied specific blowfly activity in Las Vegas under the conditions that existed at the time of the murder, and therefore could not say specifically what the blowfly activity would be.
That reasoning didn’t fly in Judge Miley’s courtroom.
Prosecutor DiGiacomo called just two witnesses, a doctor and a scientist she’d gotten in touch with only weeks before the hearing. And ME Simms this time reversed his analysis of the time-of-death scenario and narrowed the window even further.
In the end, as a result of that week-long hearing, Judge Miley granted Lobato a new trial and set a meeting with the lawyers for Jan. 24, 2018, to come to an agreement on the trial date. That sort of backed Clark County District Attorney Steve Wolfson into a corner of sorts. He had three options essentially:
- He could appeal Miley’s ruling on the Lobato case again to the Nevada Supreme Court.
- He could move forward with a new trial, re-litigate all this new evidence as brought forward by the Innocence Project group.
- He could dismiss the case and set Lobato free.
Given that the Nevada Supreme Court strongly and unanimously signaled that it believed Lobato’s alibi was credible, and given that Judge Miley found similarly, it would seem a fool’s errand to try to send the case back to the Nevada Supreme Court and expect them to overturn Miley’s decision.
If that were the option to be pursued — to re-appeal the case back to the higher court — it would be the third time for Lobato to be prosecuted for this crime. She was first tried and convicted in 2002, which was overturned because the trial judge had improperly allowed prosecutors to introduce snitch testimony into evidence, which proved to be unreliable. Lobato was retried again in 2006 and lost, but that conviction was appealed to the Nevada Supreme Court, which returned it for retrial to the Circuit Court after the Innocence Project got a hold of it.
But on this potential third time around, after the hearing in Miley’s courtroom, the state’s case against Lobato effectively had been dismantled,
That left the third option: to dismiss the case. That’s what the prosecutors opted for — to not pursue a third trial and third prosecution of Lobato.
On Dec. 29, 2017, upon a motion by the Clark County District Attorney’s Office, Clark County District Court Chief Judge Elizabeth Gonzalez dismissed all charges against Kirstin Blaise Lobato and ordered her to be released from prison. She had spent 16 years in jail for a crime she hadn’t committed.