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10.07.2003

Reasonable Doubt - Part 3

One of the most amazing things about this case was the long litany of forensic specialists the prosecutors brought forth. One after another, they confirmed that they had no forensic evidence of Kirstin Lobato being present at the scene. The prosecution pushed them to explain why they may not have gotten any evidence, but this was merely the use of a wide brush to paint over the fact that she could not be linked by forensic science.

So it begs the question, could she be excluded? The answer, according to those experts and the defense expert, is an unequalled "yes." In the forensic evidence discovered, no amount of it tied Kirstin Lobato to the scene. But even with that absence, some of the evidence also gave reason to doubt that she was the specific murderer. That is exclusion.

Some forensic evidence excluding her was discussed with the State's (prosecution's) witnesses. But much of it was not. Instead, the defense planned to go over it during the testimony of their own forensic specialist, who analyzed the crime scene. However, the prosecution was able to block much of his testimony because Kirstin Lobato's defense attorneys did not file the expert as a witness in a timely fashion. Those who have researched this case may have read this article by the Las Vegas Review-Journal stating that the "jury in the Lobato murder trial never got to hear most of what Louisiana forensics expert George Schiro had to say on Thursday. This was because the district judge in the Lobato trial, Valorie Vega, agreed with a prosecution request to limit much of Schiro's testimony."

So what did he have to say? Well, I'm going to tell you. I've got a copy of the Forensic Science Report he filed. But before I get into that, let's take a look at who he was. Unless you really aren't an extremely cynical person and know these guys do have ethics, it's tempting to think that "of course the defense's expert witness is going to be on the side of the defense," right?

The following is taken from the court transcripts, regarding George Schiro's history of court testimonies:

Q And how many cases, approximately, have you served as a consultant in the forensic science field?
A I've worked approximately 2,100 cases.
Q And, of those, how many times have you testified?
A I've testified in a little over 105 cases.
Q And of those 105 cases that you've testified in how many of those were for the defense?
A This is the fourth time I've been called as a defense witness.
Q So, all those other times you testified, who were you testifying for?
A For the prosecution.
Q So, this is a pretty unique case?
A Yes.


So, I think it is safe to say that defense expert George Schiro is not simply going to testify on the defense's behalf because they asked him to, or paid him to. He was sought out because he could analyze the scene. So, this was his analysis:

Bloody Footprints
Analysis (not allowed at trial): "There is no information to indicate that any shoes in Ms. Lobato's possession were size 10 or that they matched the shoeprint found at the scene."

A lack of connection by shoeprint was also affirmed by the prosecution's experts, though the prosecuting attorneys repeatedly avoided the subject. The man who found the body also had his footprints checked, it was determined that he was not the person who created those prints. The officers who responded to the scene made it quite clear that their priority was to secure the crime scene for investigation, including the footprints. But those bloody footprints - walking away from the body - had to come from someone, and that 'someone' was not Kirstin Lobato.


Chewing Gum
Analysis: "Based upon this information, Ms. Lobato is excluded as the source of the chewing gum found at the crime scene."

When he refers to 'this information,' he's talking about State expert witness Thomas Wahl's report. Wahl did testify in court on this matter of finding chewing gum with DNA from both Duran Bailey (the victim) and another individual. He opened up the chewing gum, which was covered in Bailey's blood, and tested the inside. Overall, this piece of gum could be tainted forensic evidence, a point all experts seem to agree upon. The gum was only of interest because of where it was found. Either way, it wasn't Kirstin Lobato's.


Hand Wounds
Analysis (not allowed at trial): "No cuts, abrasions, broken fingernails, or healing bruises can be seen in the photographs of Ms. Lobato's hands."

As Schiro points out, the reason investigators photograph suspects' hands is to document injuries that may have been received during crimes where beating/stabbing/etc. has occurred. The sheer volume of injuries to Duran Bailey shows multiple injuries from both beating and stabbing, greatly increasing the chance of the murderer injuring their own hands in the process. And the prosecution seems fond of pushing the idea that Kirstin Lobato was on a three-day meth binge when they claim she killed Bailey in a rage. If that was the case, how careful with her hands would she be? Of course, the prosecutors claim she used a bat and knife....but on that matter...


Lack of Cast-Off
Analysis (not allowed at trial): "When a person is bleeding and repeatedly beaten with a long object, such as a baseball bat or tire iron, or is repeatedly stabbed using an arcing motion, then cast-off blood spatters corresponding to the arc of the swing are produced...The confined space of the crime scene enclosures and the lack of cast-off indicate that a baseball bat was not used to beat Mr. Bailey. The beating was more likely due to a pounding or punching type motion."

Try it out. Dip a pencil in water (or something thicker, preferrably) and strike a flat surface. The substance will land in a splatter around where you strike, but some of it will also fly off during the downward swipe, leaving a line of drops stretching out a fair distance from the point of impact. That's cast-off, and there's no mention of it in this case.


More Blood
Analysis (not allowed at trial): "The photographs demonstrate numerous blood spatter patterns. There is no documentation of blood spatter above a height of 12 inches on any of the surrounding crime scene surfaces. This indicates that Mr. Bailey received his beating injuries while lying on the ground. The photographs of his pants also do not indicate the presence of any vertically dripped blood. This indicates that he did not receive any bleeding injuries while in a standing position."

The first part of that is important because it highlights the lack of cast-off that's already been mentioned, especially in light of the wall examination. The reason the final line is so important is because it defies the prosecution's reconstruction of the crime scene. Not the State's experts' reconstruction, but the prosecution's specific theory of what happened and how. In their story, they have Kirstin Lobato incapacitating Bailey with a knife assault while he is standing. Then, while he is lying on the ground, they say she went to her car to get a bat before returning to beat him to death with it.


Other Items of Note
Schiro's analysis also pointed out a lack of bleach blonde hairs - as Kirstin Lobato had at the time - observed or collected from the scene. This was not allowed in at trial.

He was allowed to talk about fingerprints, and that - based on his DNA testing and analysis - the questionable substances found in Kirstin Lobato's car did not come from human blood. The prosecution's expert witnesses had already stated that they could not verify what any substance in her car was.

Overall, from both the prosecution's and the defense's experts, the facts are clear: there is no forensic evidence connecting Kirstin Lobato to either Duran Bailey or the crime scene. And through specific evidence such as the bloody footprints and lack of cast-off, she is excluded.

More to follow.


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