Friday, Sept. 5, 2014 | 1:31 p.m.
CARSON CITY – The Nevada Supreme Court will open its fall hearings Tuesday by considering a 13-year-old case in which a Las Vegas man was killed by a blow to the head and his penis was severed.
The court will have six arguments in Carson City on Tuesday and Wednesday and then move to Las Vegas for five hearings on Sept. 16. The justices will then return to Carson City on Sept. 18-19 to hear five more appeals.
The court has been in recess part of the summer catching up on a backlog of cases.
The hearing scheduled for Tuesday is the third appeal of Kirstin B. Lobato, accused in the killing of Duran Bailey, whose body was found in a dumpster on the west side of Las Vegas in July 2001.
Bailey was stabbed numerous times, died from a blow to the head and after his death, his penis was cut off.
Lobato, who was 18-years-old at the time, was convicted of first degree murder and sexual penetration of a dead body. She was sentenced to consecutive 20-year to life terms.
The Supreme Court in 2002 overturned the conviction and ordered a new trial. At the second trial she was convicted of voluntary manslaughter and sexual penetration of a dead body. She received consecutive terms of 4-10 years.
Her conviction was upheld by the Supreme Court. But now defense attorneys are arguing there is new evidence to show she is innocent and another woman may have committed the killing.
Lobato maintains she was sexually attacked by a man and she used a butterfly knife to stab him but denies she sliced off his sexual parts. She says the attacker was alive and crying when she escaped from him.
Her lawyers maintain her DNA was not found at the crime. The blood at the killing did not match hers and her fingerprints were never discovered.
The Clark County District Attorney’s Office says this evidence was available at the time of trial and should have been introduced then. And its legal brief says there was sufficient evidence to convict Lobato, who at the time lived in Panaca, about 165 miles from Las Vegas.
The prosecution maintains she had driven to Las Vegas to buy methamphetamine.
In a hearing next Wednesday in Carson City, Dr. James Tate of Las Vegas will wage another battle with the state Board of Medical Examiners, which found him under the influence of alcohol when he showed up to perform surgery at Valley Hospital in 2010.
Tate was removed from the operating room but a blood test later showed his alcohol level was 0.06, below the 0.08 standard for drunk driving.
The medical board in April this year suspended his license for six months, fined him $5,000, ordered he cover $35,364 in investigative costs and directed he take alcohol counseling.
Tate filed suit challenging the findings of the board but a district court in Reno refused to issue an injunction to stop the enforcement of the discipline while the merits of the case were argued.
Tate appealed to the Supreme Court, which issued a temporary injunction to prevent the six-month suspension but allowed the rest of the penalty to be put into effect.
The law says Nevada courts cannot issue any stay of a disciplinary action by the state board while the merits of the case are hashed out.
Tate maintains that law is unconstitutional because it restricts the powers of the judiciary and is a violation of the separation of powers doctrine.
The court agreed to speed up the handling of the case to determine the discretion of the judiciary. But it stressed it was not ruling on the separation of powers issue at this time.
Dr. Tate has been at odds with the medical board in at least two other cases.
The court will issue its decisions later.
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