IT WAS ROUGHLY 10 p.m. in Las Vegas, on July 8, 2001, when a man rummaging through the garbage behind a bank just west of the Strip found the body.
Tossed behind a dumpster and covered in trash was a dead black man. Though he had no ID on him, police would soon learn that he was known on the streets as “St. Louis,” and, eventually, they would identify him as 44-year-old Duran Bailey, who had recently become homeless. e had been brutalized. Bailey’s skull was cracked, and his blood-caked eyes were swollen shut. Six teeth had been knocked from his mouth and were found scattered nearby. He had been stabbed repeatedly; the scene was soaked in blood. Most disturbingly, his penis had been cut off. It was found several feet from the body.
However gruesome, the murder scene was also rich with potential evidence: There were Bailey’s pants — likely pulled down by his killer, or killers. There was a piece of clear plastic that had been wrapped around his groin. Among the trash on or near the body was a clump of chewing gum, a condom wrapper, as well as several cigarette butts. There was at least one distinct set of bloody footprints inside the trash enclosure and leading away, toward the parking lot; beyond that, tire tracks, apparently freshly laid, running over a parking divider and disappearing toward the street.
There was also at least one video camera, at the ATM in front of the bank, as well as dozens of potential witnesses living in two large apartment complexes just north of the crime scene. Nevertheless, the detectives assigned to the case were flummoxed. The lead investigator, Las Vegas Metropolitan Police Detective Thomas Thowsen and his partner, James LaRochelle, arrived at the crime scene around 1 a.m. and left five hours later, as it was still being processed. They went back to the station, “put our heads together” and tried to figure out “what we had before us,” Thowsen would later testify.
They attended the autopsy later that day, where the medical examiner detailed Bailey’s extensive injuries: In addition to the head trauma and post-mortem amputation, Bailey’s carotid artery had been cut, and his anus had been slashed. Swabs taken from his penis and rectum would later be found to contain semen. No time of death was established.
Thowsen and LaRochelle visited the Nevada State Bank where Bailey had been found and learned that someone fitting his description was a customer there. They spoke to a security officer who said he had not seen any homeless people in the vicinity. They also spoke to at least one resident of the area — a woman who lived just to the north of the bank, in the Grandview Apartments, who approached the crime scene shortly after the detectives had left, asking what was going on.
But their official investigation then stalled. For the next 11 days, Thowsen and LaRochelle developed no leads in the case. The detectives could have pulled security footage from the bank or canvassed the neighborhood. They could have contacted Bailey’s known associates in order to retrace his final days. According to the official police report, they did none of those things. The murder of a homeless man, no matter how brutal, apparently was not a priority to detectives with a heavy caseload. The case seemed destined to go cold.
But then, on July 20, the police received a phone call from a woman in Pioche, a historic mining town three hours northeast of the city. Her name was Laura Johnson, and she asked whether the police department had, by any chance, found a man missing a penis. Johnson, who worked as a juvenile probation officer in Lincoln County, had heard something through the grapevine: A teacher friend, Dixie, had mentioned that her former student Kirstin had told Dixie that she cut off a man’s penis down in Vegas.
Thowsen and LaRochelle wasted no time. They hopped in a department SUV and hightailed it north along a two-lane highway into the desert mountains, toward Johnson’s home. There, she related the full exchange with Dixie. It was short on details, yet, according to the police report, she convinced the cops that they probably should not speak to Dixie directly. What if she warned Kirstin that police were asking questions? Thowsen and LaRochelle agreed, and apparently accepted at face value Johnson’s vague third-hand account. They left her home, and less than three hours after arriving in Lincoln County, arrested Kirstin Blaise Lobato.
A bleach-blond, lanky 18-year-old who at the time of the murder weighed close to 100 pounds, Lobato made an odd suspect for such a brutal crime. She had just graduated high school, and although she admitted that she had recently spent time in Vegas, she had an alibi for her whereabouts at the time of the murder. Importantly, she had no clear motive for killing Bailey, a stranger, especially in such a violent way. Nor was there any way Lobato could be the source of the semen collected from Bailey’s rectum. In fact, when the results of forensic analysis came back from the crime lab, there was not a shred of physical evidence linking Lobato to the scene.Yet, solely on the basis of a rumor, the state of Nevada would aggressively pursue a murder conviction of Lobato — and ultimately succeed. Today, following two trials, Lobato is imprisoned at the Florence McClure Women’s Correctional Center in Las Vegas. Now 32, she has a number of staunch supporters — including local activists and a retired FBI agent — who insist that she is innocent, the victim of shoddy police work, an overzealous prosecution, a poor defense and a biased judge.
“IT IS A PERFECT STORM OF WRONGFUL CONVICTION. EVERYTHING THAT POSSIBLY COULD HAVE BEEN DONE INCORRECTLY WAS DONE INCORRECTLY.”
– MICHELLE RAVELL
It is a “perfect storm of wrongful conviction,” says Lobato’s most dedicated advocate, Michelle Ravell. “Everything that possibly could have been done incorrectly was done incorrectly.”
A months-long reinvestigation of the case by The Intercept confirms that the investigation into Bailey’s murder was irredeemably flawed. It also reveals a far more likely theory of the crime, based on leads and potential suspects who were available from the beginning, that Thowsen and LaRochelle failed to pursue. Additional evidence suggests that the state has tried to to cover up its defective investigation — at the very least, by refusing to allow DNA testing of critical crime scene evidence. The Intercept’s inquiry indicates that the state’s gross mishandling of the case at every stage almost certainly sent an innocent woman to prison, allowing the perpetrators of the grisly crime to go unpunished for well more than a decade.
KIRSTEN BLAISE LOBATO, nicknamed Blaise, had a difficult childhood. Beginning when she was five years old, she was sexually abused over the course of a year by her mother’s live-in boyfriend. Lobato would later testify that, after being wrested away from her mother’s custody and sent to live with her father and his wife, she was assaulted two more times— first at 13 by a former boyfriend, and then at 17 by a friend’s father. The first two cases were reported to police, but, according to her family, neither attacker was punished. By the time she was assaulted for the third time, Lobato had already decided that the police could not — or would not — help her, and she did not report the crime.
Lobato’s family had tried to keep her safe. When she was 10 years old, they moved from Las Vegas to the tight-knit desert town of Panaca, a small Mormon outpost surrounded by mountains, just 19 miles from the Utah border. The community was welcoming, and Lobato, a friendly and inquisitive kid, fell in with a clique of children from the town’s prominent families, her stepmother, Becki, recalls.
But it was the son of one of those prominent families, Becki says, who raped Lobato when she was 13, after which things began to disintegrate. Lobato took up with the “wild” kids, and was the target of bullying and gossip. She started using methamphetamine, just as her father and Becki had when times were particularly tough. Though she was a bright student who loved poetry — one of her pieces was published in a statewide literary journal of young writers — she suffered from depression and eventually left her high school, enrolling instead at the county’s alternative school, where she graduated in 2000, a year ahead of schedule. Eventually, in early 2001, she packed her car and looking to “make a life” for herself, skipped town. She headed for Vegas, where her meth addiction became full blown. Lobato moved from party to party, crashing where she could. By mid-May she was using all the time.
Lobato was in the middle of a meth binge and had not slept for three days when, in the wee hours of a morning just before Memorial Day – most likely on May 23, although the exact date remains unclear — she pulled up to a Budget Suites motel in a sketchy part of Vegas’s east side. She’d been staying with some folks who were living there. As she made her way toward their suite, Lobato was suddenly jumped from behind — “bum rushed,” she would later describe it.The man was black, and large. He smelled like alcohol and dirty diapers. He pushed her down on her back, pulled up her miniskirt and pushed aside her panties. She struggled and began to cry, pleading with him to “stop, don’t,” she later testified. The man slapped her and said, “Shut up, bitch.” With his weight pressing down on her, she nevertheless managed to get her right hand into her back pocket, where she carried a small butterfly knife. She flipped it open, grabbed for the guy’s groin and slashed. He recoiled and she freed herself, running back towards her car. When Lobato looked back, she could see him on the ground, crying. She got to her car and sped off, shedding her clothes and possibly the knife — she doesn’t remember exactly what happened to it — as she drove. She arrived at the house of an ex-boyfriend, but he wasn’t home. She left her car in his driveway, with a note on the dashboard saying she would be back. From there, she ran to a nearby church and called the people she’d been with earlier. They picked her up. From there, the party continued.
She did not report the incident to police.
Even so, in the weeks that followed, Lobato brought up the attack a lot — both in Las Vegas, where she continued to use meth, and back in Panaca, where she eventually returned on July 2, to try to sober up.
During a drive to the Utah Shakespeare Festival in mid-June, Lobato described the attack to her friend Kimberlee Grindstaff, telling her that she had used her knife to defend herself, slashing the man somewhere near his groin. “I didn’t even get the impression the guy was hurt,” Grindstaff recalls. “I was under the impression it was enough for her to get away.”
Another friend, Heather McBride, heard a nearly identical version, saying that Lobato told her she used her knife to defend herself against the sexual attack and that she’d cut the man’s abdomen. “I remember asking, ‘Well, what happened?’” McBride tells The Intercept. “She said, ‘I didn’t stick around to find out.’”
The conversation with McBride took place on July 2 or 3 — McBride does not remember which — more than a month after the assault. Duran Bailey would not be discovered until July 8, eight miles from the Budget Suites motel.
LONG BEFORE THE cops received the phone call that led them to Lobato, they had been approached by a different woman, at the scene of the crime. It was the morning of July 9, just hours after Bailey was discovered; as police processed the scene, a woman named Diann Parker walked toward the police line. In her mid-40s, Parker, who has since died, was short and rounded. Her skin was wrinkled and soft, but her gaze was hardened and weary. Thowsen and LaRochelle had already left the scene, but Parker told a patrol officer that she lived nearby, in the Grandview Apartments, and that she herself had recently been the victim of a violent crime. In fact, she said, she had been raped one week earlier — and she was wondering if the dead man in the trash enclosure might be the man who did it. The officer took her name and contact information and sent her home.
Thowsen and LaRochelle paid a brief visit to Parker later that morning. They had not yet confirmed Bailey’s identity. Inside the studio apartment she shared with a roommate, Parker told the cops she’d been raped on July 1 by a black guy she knew as St. Louis, who was also called Duran. The cops noted in their report that her body and face were bruised, but the report does not reflect that they asked her for details about the assault she said she’d suffered. On the off chance they might match the prints left at the crime scene, the detectives asked if they could see the bottoms of her shoes. She showed them, and they did not see any blood. So they left.
It is not clear when exactly the cops identified Bailey — or whether they paused to contemplate the fact that the murdered man appeared to be the same person Parker alleged had raped her. Even after Thowsen obtained the report of Parker’s assault, on July 17, the detectives didn’t bother to follow up with her. Instead, three days later, they would arrest Lobato, turning their entire focus on the teenager from Panaca. When police did pay Parker a visit again, on July 23, their sole purpose was to ask her for a positive photo ID for Bailey. Parker did as they asked, then made a strange admission. According to a portion of a transcribed police interview that was included in an appeal of Lobato’s case, Parker told Thowsen that when he and his partner had visited her the morning of July 9, she had forgotten to show them something. Specifically, she said, she had clothing, stained with blood. “From where you were beaten up?” Thowsen asked, referring to the alleged rape. Yes, Parker said. “But I forgot to show you.” Then she added that the blood was hers.
THE INVESTIGATION LEANED HEAVILY ON THE ACCOUNT OF LAURA JOHNSON, THE WOMAN WHO FIRST MADE THE PHONE CALL TO POLICE HEADQUARTERS ASKING ABOUT A MAN MISSING A PENIS.
Thowsen had the official statement Parker made to police about her sexual assault. It mentioned possible physical evidence related to the crime — including a condom wrapper and a pair of underwear — but included no mention of any bloody clothing. “Okay,” he replied to Parker. He did not mention the odd exchange in his police report. Records do not indicate that police spoke with Parker again.
Instead, Thowsen and LaRochelle continued pursuing their case against Lobato. In the absence of any evidence linking her to the crime, their investigation leaned heavily on the account of Laura Johnson, the woman who first made the phone call to police headquarters asking about a man missing a penis.
IIT’S NOT CLEAR WHY Johnson was so invested in spreading the third-hand story about Lobato’s supposed crime — Johnson did not return repeated phone calls from The Intercept — but it seems likely that because she worked in the criminal justice system she felt some duty to report what she’d heard, even if it was a mere rumor.
Her source, Dixie Tienken, was a friend who worked as a teacher at the alternative school from which Lobato graduated. As Johnson described it, Tienken came to her on July 18 with a disturbing story about her former student, who had visited her roughly a week earlier, upset about something that had happened in Vegas. (Tienken was a confidante for many students at the school.) According to Johnson, Lobato told Tienken that she was coming out of a strip club when a man with his penis hanging out of his pants accosted her. Lobato “cut it off,” Johnson told the cops.
Johnson had few additional details to offer. She didn’t know the date or time of the incident. She didn’t know where it happened or where Lobato was staying in Vegas. But she told the cops she believed Tienken’s information was accurate and said that it sounded to her like the attack had occurred recently, a few weeks or “maybe even days” before. She also said she had heard that Lobato’s parents were helping her hide out in Panaca, possibly even considering getting her car painted so that it would not be recognized.
Tienken herself would later dispute the version of the story that Johnson told. She said she had not reported Lobato herself because Lobato had a habit of exaggerating her stories and so, Tienken told police, she wasn’t sure that a crime had even occurred — let alone a grisly murder. In a taped statement to police made six days after Lobato was arrested, Tienken did say that Lobato told her that she’d been knocked to the ground by a man trying to rape her, and that she’d “cut off” the man’s penis. But Tienken also says that police failed to record their entire conversation with her — omitting statements that contradicted Johnson’s narrative — and that on tape they steered her toward answers that pointed toward Lobato as the killer.
THE STATE’S CASE AGAINST BLAISE LOBATO ISN’T EXACTLY EASY TO UNDERSTAND, IN PART BECAUSE, RUMOR ASIDE, THERE IS NO EVIDENCE TO BACK IT UP.
Tienken’s version of events might have signaled to police from the start that they were after the wrong person, had the cops not purposefully avoided her to avoid tipping off Lobato. Instead, they went to Lobato’s home and introduced themselves as officers with the Las Vegas Metro homicide division. They told her they had heard she’d been attacked in Las Vegas and “had to defend herself,” Thowsen later recalled in court. Thowsen also told Lobato that he knew she had been hurt in the past, having obtained the records from the serial molestation she suffered as a child. With that, Lobato, sitting on an ottoman in her family’s living room, hung her head and “started to cry,” Thowsen recalled. “I didn’t think anybody would miss somebody like that,” she told Thowsen.
What Lobato meant by that statement is a subject of debate. The police treated it as an admission of guilt. Lobato knew she’d killed someone and that person, they said, was Duran Bailey. How else would you explain the fact that she had sliced someone’s penis and that the cops had a victim that was missing a penis? It was too far-fetched a coincidence. But Lobato said their appearance at her home confirmed her very worst fear, that the man who’d attacked her in May — the man who was clearly alive when she fled the Budget Suites — had somehow succumbed to his injury. Why else would they be there?
Over the next hour or so, and through sobs, Lobato described her May attack. She described the location in detail, the man who attacked her and what she did afterward. She did tell them that she cut her attacker’s penis — her memory wasn’t that great because of the meth, she said, but she thought she was “trying to cut it off.” She was back at home, she said, trying to clean up her act.
TIENKEN’S VERSION OF EVENTS MIGHT HAVE SIGNALED TO POLICE FROM THE START THAT THEY WERE AFTER THE WRONG PERSON, HAD THE COPS NOT PURPOSEFULLY AVOIDED HER.
The cops failed to ask Lobato basic questions. They did not, for instance, ask where she was the weekend of Bailey’s murder. When she described the attack against her, including a detailed description of the Budget Suites — which happened to be located across town from where Bailey was found — the officers failed to ask questions that would confirm she’d actually been at the crime scene in question. (Thowsen would later say he didn’t want to put any “idea” into Lobato’s head.) When Lobato described the man who attacked her, they did nothing to elicit details that might confirm that she was actually talking about Bailey and not a different black man. Thowsen did show her Bailey’s mug shot — Lobato said she didn’t recognize him. Later, Thowsen would suggest that her demeanor demonstrated that she did recognize him, she just did not want to admit it. Finally, at the critical point where Lobato mentioned that her attack had occurred “over a month ago,” and not within the last couple of weeks, the cops failed to follow up at all. Instead, they turned off their tape recorder, ending the interview. They arrested Lobato and drove her back to Las Vegas.
It was at this point that Thowsen and LaRochelle’s serious investigation began — and it was primarily designed to confirm their belief that Lobato was guilty of murder. “So once you had Miss Lobato you just stopped looking for anyone else?” Lobato’s defense attorney, Philip Kohn, asked Thowsen at the 2002 trial. “Not at all,” Thowsen replied. “But … the information would have to be consistent with going in the right direction. There could be dozens of ways to go, opposite directions that the evidence doesn’t lead to, but that wouldn’t make any sense.”
Indeed, prosecutors and police would repeatedly suggest that Lobato’s recorded statement to police on July 20 was a “confession” to the murder of Duran Bailey, never seriously considering that she might have been referring to an altogether separate incident that took place weeks earlier and across town. It’s a position Las Vegas prosecutors maintain to this day.
THE STATE’S CASE against Blaise Lobato isn’t exactly easy to understand, in part because, rumor aside, there is no evidence to back it up. Lobato was first tried and convicted in 2002, but the verdict was overturned on the grounds that the judge, Valorie Vega, improperly barred the defense from presenting evidence that challenged the credibility of a jailhouse snitch who testified against Lobato. A retrial was held in 2006. Judge Vega presided again. The jailhouse snitch was not called.
Ultimately, the state’s theory of the crime comes down to this: Blaise Lobato, fiending for methamphetamine, drives from Panaca to Las Vegas, sometime on July 6. She gets drugs from somewhere (the source is not clear), and parties until the wee hours of July 8, when she runs out of drugs and goes on a quest for more. She travels west of the Strip and makes her way to the Nevada State Bank to find Bailey. How she thinks to look behind a dumpster for a homeless meth dealer is not clear, nor is it clear that Bailey did meth, let alone dealt it. He only tested positive for booze and cocaine after he died. Nevertheless, Lobato agrees to trade fellatio for the drug. But she then changes her mind, partly because of her history of abuse but also because Bailey smells bad. She then somehow overpowers and brutally murders Bailey — stabbing him repeatedly and then bludgeoning him with a baseball bat that she kept in her car (or some other blunt instrument, since no blood or other evidence was found on the bat or in the car), before slicing his rectum and amputating his penis. She then covers him with trash, jumps in her car and jets back to Panaca. The three-hour journey through desert and mountain wilderness is especially perilous at night — the two-lane road is unlit — yet Lobato arrives fast enough to get cleaned up, and by midday, be hanging out with a friend, driving around on a four-wheeler and drinking beer.
To Philip Kohn, the public defender who handled Lobato’s case in 2002, the narrative was absurd. Still, he tells The Intercept, he wasn’t surprised that the state chose to prosecute Lobato. He describes the Clark County District Attorney’s office as an agency that has “abdicated” its responsibility to “prosecute only those cases that they believe beyond a reasonable doubt,” and which instead regularly defers to the powerful Las Vegas Metro Police Department, even in cases built on the flimsiest of evidence. At trial in Lobato’s case, Kohn says, the state’s shaky theory was enabled by “horrific” judicial rulings that were biased toward the prosecution, which made it impossible for him to present a full defense. (Judge Vega did not respond to a request for comment.)
Prosecutors Sandra DiGiacomo and William Kephart, who is now an elected Clark County judge, ignored or refused repeated requests for interviews for this story. In two very brief phone conversations with DiGiacomo, she refused to discuss the case because she said there was “so much misinformation” about it. When pressed for specifics, DiGiacomo declined to provide any, saying only that the misinformation is “anything” Lobato’s defenders say.
WHAT IS ESPECIALLY STRIKING ABOUT THE PROSECUTION OF LOBATO IS THE WAY POLICE AND PROSECUTORS WERE ABLE TO IGNORE OR EXPLAIN AWAY THE FACT THAT NO PHYSICAL EVIDENCE IN THE CASE SUPPORTED THE STATE’S THEORY.
On the stand at the first trial, Lobato presented her alibi. (She did not testify the second time around.) She said she had arrived in Panaca on July 2, 2001. She was sick and weak and convinced that she had been “poisoned” by bad drugs in Las Vegas. Becki, her stepmother, took her to see a doctor on July 5, and they were told to come back with urine samples. Lobato followed her doctor’s orders and continued to hang around Panaca. She was spotted by several people in the meantime, including by a neighbor’s grandson. Before long, Lobato decided she wanted to go back to Las Vegas after all. But, she said, she did not leave until the morning of July 9 — the day after Bailey was found. On July 8, Lobato said she hung out with a friend, drinking beer and riding around on a four-wheeler. A neighbor could confirm this; looking out her kitchen window as she did the dishes midday, she saw Lobato on the vehicle, turning donuts in the street. Back in Vegas, Bailey’s body would be discovered late that night.
In response, prosecutors sought to kill the credibility of witnesses who said they’d seen Lobato in Panaca the weekend Bailey was killed. Questioning another neighbor, whose grandson said he’d hung around with Lobato at her family’s house that weekend, they got her to call him “brain dead” — the kid “just doesn’t do the things he’s supposed to do,” she explained — and thus not reliable. Prosecutors also implied that Becki coerced the young man (and others) into lying about seeing Lobato in Panaca the weekend that Bailey was murdered, a serious charge she denies.
Laura Johnson took the stand at both trials. Although seemingly a textbook example of hearsay, the court allowed her to repeat the third-hand account of Lobato’s attack, describing what she said Dixie Tienken had told her. Key parts of Johnson’s account contradicted Tienken’s own testimony at trial. But prosecutors were able to undermine Tienken by seizing on the fact that her testimony also clashed with her previous statements to Thowsen and LaRochelle. This, however, went back to the partially recorded interview Tienken described to the The Intercept. Tienken says, for example, that she told police that after Lobato told her about being attacked, the two searched for news accounts together to see if anything had turned up about a man who might have suffered a knife injury to the groin. On the stand, Tienken said they looked online for sources dating back back to June 1 — more than a month before Bailey was murdered — and that she told police the same. But because there was no record of that statement (or others), prosecutors suggested that Tienken was lying to cover up for Lobato.
The same judge that allowed Johnson’s third-hand account barred testimony from witnesses on the defense side, on the grounds that their statements were hearsay. At the second trial, for example, the state convinced Judge Vega to bar Heather McBride, one of Lobato’s friends who heard about her May attack, from describing what Lobato told her — even though prosecutors had elicited that very same testimony back in 2002. That account contradicted Johnson’s testimony. McBride described the experience as extremely frustrating. Again and again, Judge Vega sustained the state’s objections. “Anything we would say would be called hearsay or [the prosecutors] would say … something, to cut us off where we really couldn’t tell our whole story except for what the [state] wanted to hear,” she recalled.
The defense was hardly blameless. At least one key witness was never called at all. Lobato’s friend Kimberlee Grindstaff, one of the first people from Lincoln County to whom Lobato confided about being attacked in Vegas, told The Intercept she was willing to testify at both trials. But she says that she was told before the first trial that she wouldn’t be needed. It is unclear why she wasn’t called the second time around.
But in the end, the most influential witness on either side was Detective Thowsen. (LaRochelle, who was in charge of documenting the crime scene, was not called at either trial. Nor did he respond to requests for an interview for this story.) The veteran cop was buff and fair-haired — the figure of an avid outdoorsman — and he had an amiable demeanor (at least under questioning by the state) that gave off the air of a man dedicated to the quest for justice. He was convincing enough to enable jurors to look past the state’s convoluted theory and lack of evidence. At Lobato’s first trial, Thowsen testified that, for all the details Lobato provided about the May attack, it was basically all in her head. She was on meth, he emphasized, and meth users often conflate stories. Lobato was just “jumbling” her facts about what happened that night, while trying to “minimize” her responsibility for the murder. Although it was not recorded in his official police report, Thowsen also testified that he had checked to see if there were any reports of a man seeking medical attention for a cut penis in May, June or July 2001. There were none, he said.By the time Lobato was retried in September 2006, Thowsen’s story about his efforts to investigate Lobato’s May attack had become far more elaborate, including much more detail than he’d offered during the first trial. Yet, again, none of it was recorded in the official police report. Although Thowsen initially testified that he checked for reports about a cut penis, under more intense cross-examination, Thowsen admitted that he had not personally done all of that research. “I can’t do every single thing. Some things have to be delegated,” he said. He maintained that he called some area hospitals, as did his secretary, whom he did not name. Thowsen also added that he had called “several” area urologists asking whether they’d encountered any patients with a severed penis in 2001. He asked that they “communicate amongst themselves” and report back if they found such a patient. “[A] town of this size doesn’t have all that many urologists,” he explained. When pressed, he added, by way of proof, “I’ve probably been to dinner with most of them at the same time.” Notably, Thowsen failed to memorialize any of these alleged investigative moves, nor did he apparently ask his secretary to do so.
Despite Thowsen’s dismissal of Lobato’s claims of a May attack, one juror at the second trial was curious enough to pass a question to Judge Vega before Thowsen left the stand. The juror wanted to know whether Thowsen had ever gone to the Budget Suites to see if anyone might have witnessed a man assaulting Lobato. Thowsen replied that the motel had no information about Lobato staying there and had no reports of incidents happening in the parking lot. “[T]here’s no sense looking for a witness to something that we know didn’t happen there,” he responded.
Thowsen did not respond to repeated requests for an interview for this story.
What is especially striking about the prosecution of Lobato is the way police and prosecutors were able to ignore or explain away the fact that no physical evidence in the case supported the state’s theory — without much pushback from the defense.
Clark County medical examiner Dr. Lary Simms initially declined to speak toThe Intercept, writing, “everything i have to say about the issues … were answered at trial.” But his claims at trial shifted slightly but significantly between 2001, when he took the stand during a pretrial hearing, and the second trial in 2006 — and they have since been called into question in their entirety. At the hearing, Simms testified that he hadn’t pinpointed a time of death (he was never asked to, he said), but he estimated that Bailey’s death likely occurred within 12 hours of when his body was found, around 10 p.m. on Sunday, July 8. This would have made it impossible for Lobato to have committed the murder, given that she was seen in Panaca that morning. But by the time the first trial began, Simms had shifted the time of death, placing it likely within 18 hours of when Bailey was discovered – widening the window enough to make the prosecution’s theory plausible. At Lobato’s second trial, his testimony shifted yet again, when he said that Bailey was likely killed between 12 and 18 hours before he was pronounced dead by a coroner investigator, at 3:50 a.m. on July 9.
When asked in a follow-up email about his seemingly fluid time-of-death estimation, Simms denied changing his testimony. In a statement that, if true, dismantles the state’s theory of the crime, he wrote that his “first and shortest estimation, which, as I recall would have excluded possible contact with Ms. Lobato, was my best estimation and was the most probable.” Simms added that the jury’s acceptance of a different timeline that would implicate Lobato in Bailey’s death “amazed me then and continues to amaze me.” Perhaps, he wrote, they used “other data” from “other testimony” to reach their conclusion.
THE JURORS WERE ENCOURAGED TO LOOK PAST THE LACK OF EVIDENCE AND THE OTHERWISE CONFUSING TWISTS AND TURNS IN THE CASE AND TO FOCUS ON ONE THING: THE PENIS.
But Lobato’s defense never did call to the stand a medical examiner to review Simms’s time-of-death estimation. Indeed, it was not until Lobato’s most recent — and still pending — appeal was filed in 2010 that the defense offered experts to argue that the state’s timeline for Bailey’s death has always been completely off. According to two forensic entomologists, the absence of any fly eggs on Bailey’s body suggests his time of death was far more likely to have been just before or at sunset on July 8, just two hours before he was discovered. (In a final email to The Intercept, Simms wrote that he has not “critically analyzed” any entomology evidence, but, assuming it is accurate, he would conclude Bailey “most likely” died closer to 4 p.m. on July 8.)
The absence of such analysis was in keeping with a crime scene investigation that was flawed at the most basic levels. Analysts did not take inventory of the many trash items found on and around Bailey’s body. Instead, based on unknown criteria, they determined that only some pieces had any evidentiary value and threw away the rest.
Those pieces of evidence that were preserved did not point to Lobato. Of 22 fingerprints collected by crime scene analysts, none matched Lobato (or Bailey). In testimony in 2006, a DNA analyst said that cigarette butts found at the scene revealed an unknown male profile on one cigarette butt, and a combination of Bailey’s DNA and that from another unknown person on the second cigarette. Lobato was excluded as a contributor. The same lab collected blood and saliva from the chewing gum recovered at the scene, which revealed a mixture of DNA from Bailey and a third unknown person. A fourth, separate DNA profile was also found on a pubic hair collected from Bailey’s body.
Even what weapon it was that was used to stab Bailey — to cut open his carotid artery, or to amputate his penis — was never determined. Nonetheless, at each of Lobato’s trials, prosecutors had Thowsen bring to court a random butterfly knife for demonstrative purposes — amazingly, defense attorneys did not object at either trial to jurors seeing a knife that wasn’t proven whatsoever to resemble the weapon used in the murder. From Simms’s autopsy report, it is clear that a single-edged blade of some sort made some of the stab wounds to Bailey’s body, but it isn’t at all clear what type of knife was used. In an effort to determine how many and what kinds of weapons might have been used, The Intercept asked retired Texas medical examiner Dr. Lloyd White to review the autopsy report and photos. He too said he could only determine that a single-edged blade was used to make at least one wound. But the depth of the wounds was apparently not measured, and the language used to describe the damage to Bailey was imprecise, White said. “[I]t’s not a very good autopsy report,” he concluded.
In the end, the jurors were encouraged to look past the lack of evidence and the otherwise confusing twists and turns in the case and to focus on one thing: the penis. Bailey was missing a penis. Lobato had admitted to cutting a penis. The rest was mostly details. “The reason why you’ll never forget this trial is because of the circumstances that came under it,” prosecutor Kephart said. “A man’s penis was cut off.”
Each time around, jurors convicted Lobato after mere hours of deliberation. Although originally sentenced to up to 100 years on a charge of murder with use of a deadly weapon, and a second charge of “sexual penetration of a dead human body,” jurors at her second trial were apparently less convinced of her culpability, convicting her only of voluntary manslaughter and the one count of sexual penetration. Combined, Lobato’s current sentence could last as long as 35 years. She will also be forced to register as a sex offender.
TO MICHELLE RAVELL, the state’s case against Lobato is simply illogical. Ravell, who is Lobato’s most staunch supporter, first met Lobato not long after she was arrested. It was a twist of fate that would bring them together; roughly a week before Lobato was arrested, Ravell’s son — then a young twenty-something dedicated skirt-chaser — came home from a weekend trip to Lincoln County with stars in his eyes. He’d met a girl and was smitten. Turns out it was Lobato, and just days after Ravell first heard her name she heard of her arrest. For murder. “And he’s telling me about it and I’m like, ‘Oh, you really know how to pick ’em.’ What kind of mother wants to hear this about the girl her son says he wants to marry?” Ravell recalls. But her son insisted that Lobato could not have been guilty. This intrigued Ravell; she was quickly drawn into the details of the case.
“At that time I didn’t have the notion that people didn’t get arrested for things they haven’t done,” she says. “I thought the police did a bit more research and investigation. I didn’t know they just went running around arresting people.” For more than a decade now, she has worked to try to bring attention to the case and to clear Lobato’s name.
Along the way, the case caught the attention of Steve Moore, a charismatic former FBI agent from California who, since retiring from the agency in 2008 has become a champion of the wrongfully convicted. Today, he is perhaps best known for his continuing work in support of Amanda Knox, accused of murdering a roommate in 2007 while a foreign exchange student in Italy. Moore was first alerted to the Lobato case by an acquaintance who asked that he look into it. As with Ravell, Moore couldn’t believe what he found — or rather, what he didn’t find. “I just kept looking for the evidence, I kept reading through [the case documents] saying, any time now I’m going to find something that will tell me, ‘Oh, now I know why they thought that,’ or, ‘Oh, now this makes sense,’” he said. “And the more I looked at it the more I realized this is just complete and utter bullshit.”
Among the nagging, unresolved issues was the central question of motive. Why would Lobato suddenly turn on Bailey with such extreme violence? Though the state never addressed the issue head on, it suggested that the crime was fueled by Lobato’s meth use — just as prosecutors used her drug habit to explain away the fact that none of the details she described about her attack outside the Budget Suites matched the details of Bailey’s murder.
But, Ravell and Moore point out, if there was one person in town who might have had a reason to harm Bailey as brutally as the prosecutors have insisted Lobato did, it was Diann Parker, the woman who approached the police line on the morning of July 9. Bailey had allegedly raped her exactly one week before he was murdered, giving Parker, or one of the neighbors who witnessed her troubling encounters with Bailey, a clear motive. While the report on Parker’s rape was in the hands of police, it was never taken seriously by the state.
It was Sunday, July 1, 2001, and Parker was hanging out at the Grandview Apartments with some Mexican neighbors who lived in an apartment just across a small grassy area from hers. Suddenly, Duran Bailey stormed into the apartment and slapped her. He didn’t like her talking to Mexicans. Her immigrant friends ran Bailey out of the apartment and yelled at him to stay away.Bailey had once lived with his mother in that same apartment complex, but when she died, he was unable to keep the place. He became homeless. Still, Bailey continued to spend much of his time at the Grandview complex, his cousin testified, hanging with a guy who rented a place there, while spending his nights sleeping under a freeway overpass above Flamingo Road.
Not much is clear about Bailey’s past. Reportedly he was from Missouri, had the nickname “St. Louis,” and was rumored to have once committed murder. He had been arrested a number of times by the Las Vegas police, including for violent assaults of a girlfriend at the Grandview Apartments. He was accused of choking her; another time, he slammed her head against a tree.
Bailey had started hanging out with Parker in early 2001. Parker, originally from Arkansas, had her own share of run-ins with the law. She’d been picked up for burglary a couple times in the nineties, and eventually the Nevada Gaming Control Board revoked her work card, preventing her from maintaining casino employment. In 2000, she was arrested for solicitation. She was unemployed in the summer of 2001.
Parker and Bailey used crack cocaine together and Parker had, on occasion, traded him sex for drugs. He was a scary guy, she would later tell police. After Parker’s friends ran Bailey out of their apartment on the Sunday that he slapped her, Parker quickly headed home.
Early that evening, however, she ran into Bailey again, when returning to her apartment from the laundry room. Bailey came up behind her and forced his way inside her home. He was angry. What was she doing with those Mexicans? Nothing, just hanging out, she replied. If he caught her hanging with them again, she recalled him saying, “I’m gonna knock the shit out of you.” A struggle ensued and he hit her in the head. She pleaded with him not to hurt her — say that once more, she recalled him saying, and “I’ll kill you.” He threw her onto the bed. Over the next five hours or so, he repeatedly raped her, including several attempts at sodomy. He then said he would have to kill her, lest she report the attack to police. She convinced him she would not say anything, then said she wanted to go with him to score some drugs. When he walked out of the apartment, she rushed back inside and locked the door.
Parker was afraid that Bailey would carry out his threat, so she did not immediately report the assault. But a few nights later he came back, banging on her apartment door and window. She went to the police and on July 5, was interviewed at the University Medical Center hospital.
In photos, police documented Parker’s extensive injuries: Two swollen, blackened eyes; a bruised mouth, where Bailey held his hand to it, to keep anyone from hearing her scream, she said; a bruise to her neck, where Bailey held a kitchen knife to her carotid artery, among other deep bruises.
BAILEY’S INJURIES WERE EERILY SIMILAR TO THE ONES HE HAD INFLICTED ON PARKER.
Parker was afraid to go back home. She asked for police protection, but the officer suggested she have neighbors watch out for her — like her Mexican friends who had helped her before. Parker then asked if she could kill Bailey if he returned to her apartment. “So if he breaks in that door, I have permission to kill his fuckin’ ass, don’t I?” Parker asked.“If anyone breaks in your house, you have a right to protect yourself. That’s the law. Whatever it takes,” the officer replied.
Three days later Bailey was found murdered.
His injuries were eerily similar to the ones he had inflicted on Parker. There were the two black eyes he gave her (Bailey’s were bruised and swollen shut), the wound to her neck (his carotid artery had been cut), the bruising on her mouth (his teeth were knocked out), and the fact that he raped her vaginally and tried several times to sodomize her (his penis was amputated and his anus slashed).
If these parallels did not catch the attention of law enforcement, they were enough for defense attorneys to raise the possibility of an alternative theory of the crime, which they tried to present at the 2002 trial. Parker was called to testify and maintained that Bailey had raped her, but denied any involvement in his murder. She said she first heard about the crime from her roommate, who had seen something on the news, then went to the crime scene to see for herself if the victim might have been Bailey. It was not clear — nor did police try to figure out — why Parker might have concluded that the dead person down the street was Bailey. The Interceptsought to determine what, exactly, was aired on the local news the morning of July 9, to no avail. Local television stations either had no record of such a story in their archives or else had no way to check that far back.
There is no record reflecting that Thowsen or LaRochelle bothered to check news reports at the time. If there is no direct evidence to connect Parker to the murder, it is clear that Thowsen and LaRochelle took hardly any steps to see if any existed. They dismissed Parker as a suspect based primarily on the fact that she had been “cooperative” when they visited her apartment and asked to examine the bottoms of her and her roommate’s shoes for a bloody pattern that might match the shoe prints left at the crime scene. They didn’t see any blood on them and that was that.
Nor did investigators seek to interview Parker’s Mexican neighbors. In testimony, Thowsen said he did run their names through a law enforcement database, found no criminal history, and determined that they were “hardworking” and thus unlikely to have been involved in the crime.
Thowsen wasn’t the only person who failed to get more information from Parker’s neighbors. Lobato’s defense attorneys did not interview them either. According to Kohn, by the time his investigator went to search for the men, they had moved. Defense attorneys thought perhaps they’d returned to Mexico.
But they were wrong. In a visit to Las Vegas, The Intercept was able to locate two of the men who lived in the apartment across from Parker in 2001. They said they did not remember Parker or Bailey, nor were they ever questioned by police. But they also said that there were actually seven men living in that apartment in 2001. Apart from themselves, the men said that three are working construction in California, and two simply disappeared that summer of 2001. They headed back to Mexico and have never returned.
Parker died in 2005, and The Intercept was unable to locate her former roommate. But in an affidavit provided to Lobato’s defense in 2010, the man said that he was actually Parker’s “domestic partner” and that the two discussed Bailey’s murder on “a number of occasions” before she died. He said that Parker told him that it “was not possible” that Lobato had murdered Bailey.
IN THE LONG-RUNNING TV crime drama CSI: Crime Scene Investigation, set in Las Vegas, the city’s police, crime scene analysts and medical examiner are portrayed as efficient and fearless advocates for truth in justice — they leave no stone unturned and are swift and resolute in their evidentiary analyses. In the real-life case of Duran Bailey, nothing could have been further from the truth.
Law enforcement ignored evidence that pointed away from Lobato, and today prosecutors continue to oppose any additional forensic testing that might solve the murder once and for all — potentially proving either that they were right about Lobato, or that they relentlessly pursued an innocent woman.
A number of items from the crime scene have never been subjected to DNA testing — including the pants worn by Bailey, which were unzipped and pulled down around his ankles, the plastic wrapped around his groin, and perhaps most significant, the semen from his penis and rectum. The state adamantly opposes testing these items. Retired FBI agent Moore says he does not understand the state’s position. Being in “law enforcement demands that you test everything that could be potential evidence,” he says.“You have something that is very obviously potential evidence and you are refusing to test it and you have no good reason for that position.”Despite the state’s official position, on a recent episode of the true crime show Snapped, which featured Lobato’s case, prosecutor DiGiacomo claimed that the semen DNA has been proved to belong to Bailey. “I’ve had supporters of Lobato say to me, well, why don’t you test the sperm that was found … It was tested,” she said bluntly. “It was the victim’s.” But court transcripts contradict this statement. (For starters, no sperm was found in the semen samples the state collected from Bailey’s body, which is significant because scientific testing at the time was not discrete enough to discern a DNA profile from a spermless semen sample.) Regardless, if any testing on this evidence has indeed been carried out, the results have never been given to the defense.
Through assistants, elected District Attorney Steven Wolfson and Deputy DA Steven Owens, who is representing the state against Lobato’s appeal, declined to talk about the case.
Regardless, the state remains steadfast that Lobato is guilty of Bailey’s murder — and that no amount of DNA testing will change that. In defending its stance, the DA’s office has staked out a position that runs counter to the evolution of DNA science and its profound impact in revealing wrongful convictions. Nationally, there have been 326 post-conviction DNA exonerations; in nearly half of those, DNA testing has also led to the identification of the guilty party. To date, there have been just two DNA exonerations in Nevada — and only one in Las Vegas, in a different 2001 case, in which the Vegas Metro police admitted, 10 years later, that its lab mixed up two biological samples, falsely incriminating an innocent 18-year-old who spent four years in prison for a robbery he didn’t commit.
Lobato’s case is currently pending before the Nevada Supreme Court. In arguing against DNA testing before the court last fall, prosecutors acknowledged that there was nothing found at the scene to tie Lobato to the murder. But neither was another key bit of evidence found. “Show me another black man with a missing a penis and maybe we’ll have something to talk about,” Deputy DA Owens told the court.
After repeated requests, The Intercept was barred from interviewing Lobato by the Nevada Department of Corrections, despite an official policy that formally encourages news media visits to Nevada prisons. The explanation was that the Nevada DOC does not allow inmate interviews “for entertainment purposes.” DOC records show that the department used the same excuse to deny 18 media requests between January and September of last year. (More than half of those were requests to interview O.J. Simpson.)
But Lobato’s supporters are vocal on her behalf. To Steve Moore, the retired veteran FBI agent, the problem from the start was that the cops, unable to see past the lurid detail of the missing penis, never did any real investigation at all. “It was pathetic,” he says. And Michelle Ravell points out that if Lobato is lying — if she has truly been guilty of Bailey’s murder all along — it would mean that a lot of other people are lying on her behalf as well. Everyone who described Lobato’s recounting of the story of her May 2001 attack in Las Vegas would have to have made it up or gotten it wrong.
Or even more confounding, says Ravell, it would mean that Lobato went around telling people the details of an attack before it ever happened, in an attempt to create an alibi for a future crime. “You don’t say, ‘I was attacked and some guy tried to rape me’ so that later, some guy can try to rape you or try to attack you and you can kill them,” Ravell says. “Who the hell does that?”
Edited by Liliana Segura. Fact-checking by Alleen Brown. Research assistance by Sheelagh McNeill.
ILLUSTRATIONS BY PAT KINSELLA FOR THE INTERCEPT