Explainer on Nevada Supreme Court Decision
The Nevada Supreme Court reversed the denial of Kirstin Lobato’s appeal. So what does that mean?
Basically, the court held that the trial court (Judge Valorie Vega) did not do an adequate job fleshing out Lobato’s claims for relief. The court specifically cited several areas where Vega should have ordered an evidentiary hearing. The court said that grounds 1–24 and 78 should have been given more than a quick denial by Vega. Those grounds for relief are:
Ground 1. New forensic entomology evidence that Duran Bailey’s time of death in Las Vegas was after sunset on July 8, 2001, when the Petitioner was 170 miles away in Panaca, Nevada.
Ground 2. New forensic pathology evidence that Bailey’s time of death was after 8 pm on July 8, 2001, when the Petitioner was 170 miles away in Panaca.
Ground 3. New forensic entomology and forensic pathology evidence that Bailey’s body did not have cockroach and other predator bites, which establishes his time of death was close to discovery of his body in Las Vegas, when Petitioner was 170 miles away in Panaca.
Ground 4. New expert psychology evidence the Petitioner’s Statement describing a sexual assault at an east Las Vegas hotel is not a confession to Bailey’s murder at a west Las Vegas bank.
Ground 5. New alibi witness evidence the sexual assault at the Budget Suites Hotel described in the Petitioner’s Statement occurred prior to July 8, 2001.
Ground 6. New alibi witness evidence the Petitioner was in Panaca on July 6, 7, and 8, 2001, and she wasn’t under the influence of methamphetamine, so she could not have murdered Bailey in Las Vegas on July 8 while under the influence of methamphetamine.
Ground 7. New forensic pathology evidence that more than one person was involved in Duran Bailey’s murder, and it excludes the Petitioner.
Ground 8. New forensic pathology and crime scene evidence Duran Bailey was alive when his rectum was injured means the Petitioner was convicted of a non-existent violation of NRS 201.450.
Ground 9. New forensic pathology evidence that on July 8, 2001, Bailey experienced two attacks two hours apart and likely separated by a meal.
Ground 10. New forensic pathology evidence related to the circumstances and time of Bailey’s murder excludes the Petitioner as a perpetrator.
Ground 11. New forensic science evidence establishes the Petitioner’s shoes could not have been worn by Bailey’s murderer.
Ground 12. New forensic science evidence establishes the shoeprints imprinted in blood on cardboard covering Bailey and on concrete leading out of the trash enclosure were made by his murderer, and the Petitioner’s shoeprints are excluded.
Ground 13. New forensic science evidence excludes the Petitioner and her car from the crime scene, and undermines the prosecution’s theory of the crime.
Ground 14. New witness evidence Bailey did not live in the trash enclosure where he was murdered establishes the Petitioner could not have known to go there.
Ground 15. New witness evidence that in July 2001 methamphetamine was readily available in Panaca where Petitioner was living and nearby towns, so she would have no reason to go to Las Vegas.
Ground 16. New third-party culprit evidence that Diann Parker’s Mexican friends murdered Bailey.
Ground 17. New evidence that three checks drawn from Bailey’s Nevada State Bank account were negotiated for cash one to three days after his death.
Ground 18. New forensic science, dental, and crime scene evidence the prosecution’s theory was impossible that Bailey was hit in the mouth by a baseball bat in the trash enclosure’s northwest corner, and fell backwards and hit his head on the south curb.
Ground 19. New legal evidence Petitioner was convicted of a non-existent alleged violation of NRS 201.450.
Ground 21. New evidence LVMPD Detective Thomas Thowsen testified perjuriously multiple times in an effort to falsely link the Petitioner to Bailey’s murder.
Ground 22. New evidence of police and prosecutor misconduct by prosecuting the Petitioner when they had evidence the Petitioner did not murder Bailey or cut his rectum after death.
Ground 23. New forensic entomology, forensic pathology, forensic science, crime scene reconstruction, psychology, alibi witness, dental, third-party culprit, police perjury, and prosecution and police misconduct evidence establishes the Petitioner is actually and factually innocent of murdering Bailey and the post-mortem cutting of his rectum on July 8, 2001.
Ground 24. New evidence the Petitioner’s conviction was based on false evidence.
Ground 78. Cumulative new exculpatory evidence supports vacating the Petitioner’s conviction and dismissal of the charges or a new trial.
The court also gave some weight to Lobato’s claim of ineffective assistance of counsel, and remanded the motion back to the trial court for more evidence on Grounds 38 and 40. Those are:
Ground 38. Petitioner’s counsel prejudicially failed to retain a forensic entomologist and introduce expert entomology testimony about Bailey’s time of death.
Ground 40. Petitioner’s counsel prejudicially failed to retain a forensic pathologist and introduce exculpatory expert forensic pathology testimony about the medical evidence related to Bailey’s murder.
The court repeatedly stated that an evidentiary hearing should have been held. So, it seems like Lobato is going to get an evidentiary hearing in front of a new judge. Judge Vega has (thankfully) left the bench and can no longer preside over this case. It also cannot be overstate that the ruling was unanimous.
No timeline has been set, but expect the court to start ramping up pretty quickly. We should know more on Monday, but rest easy knowing Kirstin’s going back to court!