Well, those questions can have many answers. But if you are interested in neither truth nor justice, you might turn to Kirstin Lobato's trial and ask: What Would Kohn or Kephart Block?
(Kohn was the lead defense counsel for that case, while Kephart was the lead prosecutor.)
During the trial against Lobato for the 2001 murder of Duran Bailey, many things went on away from the eyes and ears of the jury, which is pretty typical for a trial. During such times, both the prosecution and defense often attempted to block evidence from coming into the trial. Since what a lawyer chooses to block - and why - can say a lot about the eventual outcome of a trial (not to mention saying a lot about the lawyer), it certainly bears looking at. So, the following is a list of items that were successfully blocked by the prosecution or the defense.
What Would Kohn Block?
- Out of 46 pictures of Duran Bailey's dead body, Kohn was able to block 7 and one part of an eighth. The reason they were blocked was because they were deemed too repetitive, and therefore could be considered overly prejudicial. Essentially, Kohn was concerned that the photos might adversely horrify the jury, especially considering that Duran Bailey's corpse had enough snapshots to rival a Jessica Alba photo shoot (and Bailey was nowhere near as cute).
- 3 lines from Kirstin Lobato's police statement were redacted (cut out). All three lines were deemed not only irrelevant to the crime, but also potentially damaging to her character. Even though the judge ordered these lines redacted, the subject matter still came up in court. This occurred through witness testimony, but State prosecutor Kephart also played the unaltered version of the taped statement before the jury while displaying an altered transcription for them to read. So the entire point of blocking the subject was rendered moot.
And that's what the defense team blocked (sort of). Now...
What Would Kephart Block?
- Two of four pages from a book recognizing Lobato's creative writing. The reason was unclear, because it was discussed sidebar (quietly to the judge with both attorneys present) without record during the trial.
- Forensic footprint analysis by a defense expert. This would have pointed out that the bloody footprints excluded Kirstin Lobato from committing the crime. That is, they were evidence that someone else committed the crime. Good thing to block, if you're a over-zealous prosecutor out for blood. Reason: the defense did not notify the prosecution of that evidence soon enough.
- Blood spatter forensic analysis. This would have been testimony to point out that it was unlikely a bat was used in the murder, which is the only weapon the prosecution could reasonably say Lobato used for bludgeoning. An 18-year-old girl just over a hundred pounds shattering skulls with her fists just doesn't fly outside of Hollywood, high heels or no. Especially when there were no healing injuries on her hands 12 days later, and no DNA evidence of her at the crime scene. The medical examiner had already pointed out it was unlikely the skull fractures came from a bat, but you certainly wouldn't want someone else to point out more evidence that might undermine that point. Block it! And why? The defense did not notify the prosecution of that evidence soon enough.
- General forensic analysis: an alternate forensic reconstruction of the crime using the available evidence, including additional evidence to consider. If you are trying to say something happened, you certainly don't want the jury hearing that the evidence shows a more likely scenario than yours. So, block it: the defense did not notify the prosecution of that evidence soon enough.
- A pair of witnesses who saw Kirstin Lobato's car 170 miles away from the murder at the most likely time Bailey was being killed. This is the same car that the prosecution had been arguing that Lobato drove away from the crime scene, so he certainly would not want some old couple pointing out that it was hours away from the scene at the time. Block 'em, and guess why? Go on, guess. That's right, the defense did not notify the prosecution of that evidence soon enough.
- And of course, the big one: Evidence that the State's star witness was a perjurer, and had already been willing to lie to the court. Since Kephart needed that witness to specifically connect Kirstin Lobato to the crime scene (since nothing else did), it would certainly be bad for the jury to realize the witness really was a self-serving snake. So block it, arguing that those evidenced lies were about something else, and therefore the witness would not necessarily be lying about her testimony on murder. The blocking of this evidence later became the basis for overturning Kirstin's case (with a retrial starting in November of this year).
So, to sum it up: if you're Kohn you block prejudicial stuff...and you do a poor job of it. If you're Kephart, you block evidence of innocence on technicalities with the help of a bumbling defense.
Let's hear it for truth and justice.
A little background: the body of Duran Bailey was found behind a dumpster on July 8th, 2001. He was slaughtered, and I assure you that word can be used without any melodrama. His death was simply a brutal and very bloody one. Whoever killed him covered him with trash, and among that trash a rather large piece of cardboard was found over his face and torso. This was attested to by several investigators, including:
The first officer on the scene, Officer Testa
There was also this bloody shoeprint track exiting the crime scene (yellow annotations by me).
From Officer Testa's testimony:
Q: What is that?
A: Looks like a foot mark or shoe print from somebody had stepped in blood and had been walking back out.
Q …the footprint was there when you got there, right?
A: Yes, sir.
The officer detailed the lengths he went to in order to protect the crime scene. From start to finish, he reported all the things he did to avoid contamination, and clearly played it safe and responsibly.
The shoeprint was compared to the man who found Bailey's body while dumpster diving, Richard Shott. Forensic analysis showed that he did not make that print. Without any other apparent suspect, it is likely that Bailey's murderer did.
This likelihood is further shown by the aforementioned cardboard found over the victim's body. On that piece of cardboard, two more bloody shoe prints were found. That would indicate that the murderer made those prints walking around, then threw the cardboard on Bailey's body with the rest of the trash.
Forensics determined that these prints were made from a size 10 men's workboot. Surely, this was a clue worth noticing by Detective Thowsen or his partner. Ah, but no...
Kirstin Lobato became the detectives' only suspect after the police learned she had been talking about defending herself from an attack. Her story bore only a few similarities to Bailey's death, but it was enough to bring the detectives to her house on June 20th, 2001.
12 days after he was at the murder scene, Thowsen took a statement from Kirstin Lobato without ever mentioning the date of the murder. Had they even asked, they would have found out that she was referring to an incident in May of that year, over a month before Bailey's death. But Detective Thowsen and his partner then decided that she was admitting to the crime and arrested her, despite the clues that should have made him aware that they were talking about two different occurences: a different location, a different time frame, and a description of events that directly conflict with any reconstruction of the crime.
But heck, why not add one more? From that statement:
Q: (Thowsen) And what kind of shoes did you have on?
A: (Lobato) I had on black high heels.
Even if Thowsen did not know the exact size of either shoe (the high heels were size 7 1/2, women's), there is a definite difference between a workman's boot and a high-heeled shoe. I mean, look at the picture above. Can those really be mistaken for high heels?
Seriously. Somebody needs to go back to detective school.
This was the last word to the jury before they went back to deliberate. Kephart, Nevada's lead prosecutor in this case, did the following during this time:
1. He made several substantially harmful misstatements.
2. Some of those misstatements were apparent.
3. He suppressed any awareness that his misstatements were incorrect through oratory manipulation and phrasing.
4. He suppressed any awareness that his misstatements were incorrect by using quotes out of context.
5. He repeatedly claimed facts that were not in evidence.
6. He repeatedly claimed facts which were not true.
7. He offered unsupported arguments after suppressing the forensic evidence which disproved those theories.
8. He offered surprise arguments based on all of the above, especially facts not in evidence or testified to. At this time in argumentation, there was no legal course to disprove those theories, many of which would have been simple to disprove.
9. He suppressed his own evidence.
10. He claimed as fact the opposite of his own suppressed evidence.
Kephart did all of this, as I have detailed below. And this is in the closing argument alone. But argument only goes so far. I am no lawyer, but this was to me a clear case of prosecutorial misconduct. What makes it worse than anything else is that the trial was basically over after that, so Kephart could get away with it, and he knew he could. The result was that a young woman was sentenced to 40 to 100 years in prison at the age of 18, for a crime she could not have committed.
A prosecutor should not be allowed to do these things, especially to this degree. It is a terrible violation of due process and true justice.
"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.
As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor - indeed, he should do so.
But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."
- Berger vs. the United States (emphasis added)
That is the standard set forth by the United States Supreme Court. Kephart is a slap in the face to every prosecutor who struggles to do his or her duty while following the standards of our nation.
Duran Bailey, the man Kirstin was later convicted of murdering, died six days later in the early hours of the morning on July 8th, 2001, in Las Vegas. The medical examiner approximated that he died 8 to 10 hours before his body was found at 10:30 that evening. At most, he said, 24 hours earlier. Therefore, it can be assumed that it was the night of July 7th or the morning of July 8th when Duran Bailey died. This has not been contested by anyone.
Back up three days from that:
That night: July 7th turning into July 8th
The night before: July 6th turning into July 7th
The night before that: July 5th turning into July 6th
So, then, if she is taken at her word AND the prosecution is correct about claiming she killed Bailey, then she began that meth marathon sometime on the 5th. And the prosecution does take her at her word about being on drugs for the three days prior to being attacked. Kephart describes her in that final closing argument as: "somebody who's on a three-day binge who's starting to flutter." That was one of over 30 mentions of illegal drugs, meth, and/or Kirstin's lifestyle relating to meth, scattered throughout his argument from start to finish. So, it is obvious the prosecution has taken her at her word and thinks it is very relevant indeed.
But what does the evidence show?
During the trial two of the prosecution's witnesses confirmed that they had seen her in Panaca on the 5th and 6th of July. Her mother did as well (for the defense), and even took the 6th off from work, which was recorded by her place of employment. Her supervisor testified that she told him it was specifically to take care of Kirstin, who had not been feeling well.
So, unless we presume all these people were lying about when they saw Kirstin, and that her mother took July 6th off from work for some other reason and later got her supervisor to lie about that in court, it has pretty much been established that she was in Panaca - where she had no access to drugs - on the 5th and 6th at least. At least one prosecution witness and one defense witness also testified to seeing her on the 7th, and multiple people saw her in Panaca on the 8th.
But the prosecution's scenario means she has to be on drugs at least from the night of the 5th on through to the 8th. Even if you presume she had some kind of stash of drugs, no one who saw Kirstin in Panaca ever mentions the idea that she might be high on meth the entire time. But hey, how would you know for sure that she was not on meth anyways and no one could tell?
Let's go to State's Exhibit 133 and 133A.
To be clear, "State's exhibit" means it is the prosecution's evidence. 133 and 133A are medical records. Those medical records were a result of Kirstin not feeling well and thinking she might be poisoned. So she was specifically tested for drugs, and the records clearly indicate that meth is one of the things she was tested for.
According to these medical records, the first sample for this test was collected on July 5th, 2001. The second was collected on July 6th, 2001. Neither one showed any sign of methamphetamines in Kirstin's system.
The prosecution's own evidence shows she was not on drugs on the 5th or 6th. Kephart, even as he talks about her three-day meth binge, ignores the scientific, medical evidence in his possession that proves that she was not. But instead of taking that evidence into account (or, hell, even marginalizing it), he flogged that meth horse well beyond its death, and submitted the very opposite of his evidence to the jury.
I think Bill Kephart is a disgrace to his profession. He was clearly trying to destroy Kirstin Lobato no matter what.
Q (Officer) And how soon was it that you talked to her before you were attacked?
A (Kirstin) It was afterwards already.
Q After you had been attacked?
A Yeah, this has already been over a month ago.
In this conversation, Kirstin was discussing a conversation she had with someone else who might have been a victim of the same guy who attacked her. Kirstin even described the woman to the police.
“Yeah, she was another blonde girl that had a scar on her lip and I don’t know her name but she was about 25.”
Now the timeline is easy to see here. Kirstin was saying she had been attacked. Then she talked to another girl who was attacked. Maybe by the same guy, maybe not. Maybe Kirstin hurt him bad enough to stop him, maybe not. She doesn’t know. But saying "over a month ago" clearly illustrates that both her attack and the conversation happened before July 8th. Even if you’re playing fast and loose with time frames, the passage of 12 days does not typically equal the phrase “over a month ago.”
Enter Diann Parker. This woman was raped by Duran Bailey a week before his murder, with witnesses. Bailey lived in the dumpster enclosure where he died, very near to her apartment. The day his body was found she showed up at the crime scene trying to determine if it was Bailey who was dead. Yet the police never followed up with her as a suspect after they arrested Kirstin Lobato.
Fast forward to the trial. Kephart sought to undermine the fact that Kirstin inadvertently gave the police exclusionary information by telling them that the attack on her happened over a month prior. In order to do this, Kephart brought the focus onto the person Kirstin spoke of when she talked to police…the woman Kirstin described as a blonde girl around age 25 who had a scar on her lip. Kephart says:
"Let me back up a little about Diann Parker again. What did we hear from the defendant? What did the defendant tell you in her statement to the police? She told you, it's on the last page of her statement, they were questioning her about -- she came back on and said I know about another woman that had been raped. And her statement was given on the 20th of July, 2001, the defendant's statement. And they asked her about -- and do you remember my cross examination about this? I asked her, is she telling us that a man that she cut his penis was out raping again? She said she didn't know. Then the defense came up and said, well, you don't know when that happened and when that statement was made or what -- I mean, when that rape happened. When you read her statement, when you listen to it she says, and they:
'Q And how soon was it that you talked to her before you were attacked?
A It was afterwards already.
Q After you had been attacked?
A Yeah, this had already been over a month ago.'
Ladies and gentlemen, I submit to you that Diann Parker's rape that happened on the 1st of June, or July, was approximately a month from the time when the defendant spoke to the cops. It was over a month ago."
There's a nice change of “has” to “had” there in that last line from Mr. Bill “Past Tense” Kephart. It helped him shift the timeline slightly towards what he wants it to be. That is...talking to this other woman happened over a month ago, but not necessarily the attack on Kirstin. Either way, he is clearly implying that Parker is the woman Kirstin talked to.
According to Kephart, this is the 25-year-old blonde girl with a scar on her lip.
Say hello to Ms. Parker. By the way, that bruise – not scar – on her lip, was given to her by the murder victim, Duran Bailey, shortly before that picture was taken. I can't tell if she is blonde or not from this photo (I don't suppose you saw her, Michelle?), but I think it speaks for itself as to whether or not Parker might be the same woman Kirstin described.[Update (with many thanks to Michelle): "Dian Parker would be 46 years old if she were still alive, so that makes her 42 at the time of the murder. She had dark brown hair and dark brown eyes."]
Now, the idea that Parker might be the woman Kirstin was talking about was never once brought up during trial. Kephart makes that connection right that very moment for the jury. There was no precedence and no warning. The jury never got to learn how Kirstin described the girl to the police, or if Kirstin and Parker knew each other. The jury only knew that she had spoken of another woman when talking about her attack being “over a month ago.”
Out of 28 witnesses (excluding Kirstin herself), those that knew Kirstin or had met her were asked to identify her in the very first handful of questions. This was done without fail. But never once was it mentioned by defense or prosecution that Parker might know Kirstin Lobato. The subject was never even approached. She was never asked if she knew the defendant like everyone else who was expected to know Kirstin. In her statement, Kirstin also noted that the woman she spoke to was at Steve Pyszkowski's house. Pyszkowski also testified, but they never asked him if he knew Parker, nor did they ask Parker if she'd ever been to Steve's house.
So, here Kephart is, giving the final closing argument. And what does he do? He makes shit up that was never even alluded to in the trial. And he cannot be proven wrong at this point, which is easy to do if you just go to the statement or call up Parker as a rebuttal witness and ask her "Hey, do you know the defendant? Or maybe this Steve Pyszkowski guy?" But they don't, and they can't, because this is the closing rebuttal argument...the very last thing the jury will hear on Kirstin's case.
Ludicrously, after that statement above from Kephart, defense counsel Kohn offers this objection:
“Your Honor, that misstates the evidence. Object. It was the 20th that she talked to him.”
So let me get this straight. The prosecution dropped a huge bag of B.S. out of the blue, and the defense objected to the way Kephart used the date of Kirstin's police statement?
The sheer ineffectiveness of the defense, coupled with the 'malice aforethought' of the prosecution, is so bad that…I don’t even know what to call it anymore.
While arguing that Kirstin stabbed Bailey’s scrotum while he was standing with his pants down, Kephart says:
“And look at those brown clothes that he’s wearing, those pants. They’re down around his knees when they find him. That means he bled down. His blood dropped down. Didn’t drop back here (indicating); didn’t get back here while he’s laying in blood. It dropped down and hit the top of his pants. There’s no cut in his crotch area.”
And he concludes:
“That man was ready for some kind of sex act.”
Okay, first of all, the fact that his pants were down does not mean he bled down. It means his pants were down. Never mind that this is the logical place for his pants to end up considering that his member had been cut off and his anus stabbed. One would suppose Kephart has more evidence that says Bailey was standing and the blood dripped down. I'll get to that in a moment.
Kephart also notes that there is no cut in his crotch area and argues that means he was ready to get it on, so to speak. Is he trying to ask: why not just cut and stab through Bailey's pants? It is difficult to amputate someone like that if their pants are on. Point is, you can’t say one way or another if he was getting ready for sex on or not just because his pants are down. So, in that sense it is a legitimate argument. But Kephart props that argument up on the idea that Bailey is standing, ready to receive the fruits of his proposition, when he was stabbed without warning. Evidenced, Kephart says, by blood falling down from that wound.
So, let us look to the actual evidence of bleeding. Consider the analysis of the expert forensic scientist Schiro, who has an impressive resume with plenty of expert credentials. At the time, he had testified over a 100 times for prosecutors. In this case, he was testifying for the defense. Kirstin’s case was only the fourth time in his entire career that he had been a defense witness.
Now, note that Kephart claimed that Bailey bled down. “That means he bled down. His blood dropped down…It dropped down and hit the top of his pants,” he said. Then read Schiro’s analysis:
“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.”
No vertically dripped blood. It did not drip down. I don’t know what which photo(s) of the extremely bloody crime scene Kephart was pointing to when he was indicating, but I’ll take the word of an expert forensic scientist – especially one who has served most of his career in the interest of prosecutions – over that of a district attorney who has already misstated evidence multiple times in the handful of minutes that he’s been arguing.
But who got to hear Schiro’s analysis? Certainly not the jury. Kephart got Schiro’s testimony on this blocked, based on Special Public Defender Kohn’s extreme lateness in submitting Schiro as a witness. But they did not outright block Schiro himself. The court went over his findings with both the prosecution and defense while the jury was not present, and blood spatter is one of the things Kephart argued to keep out.
Additionally, none of the expert forensic witnesses on the prosecution’s side ever made the claim that blood dripped down. Kephart never asked them about it, either (which would have been prudent if he was going to argue it so vehemently later). His claim, essentially, comes out of nowhere at all, and he has already succeeded in blocking a credible expert from saying otherwise. This is the last word, and there's no one left to counter him.
Just a few minutes before this, during the defense team’s closing argument, Kephart had objected to some of the points Kohn brought up on the grounds that no one had said anything during the trial about them. Given that, you would think that Kephart would be a little more careful about spouting out things that the testimony won’t back up. You’d think he would at least avoid offering such things three times in quick succession. But, of course, he was not serving the cause of justice. His only objective was victory.
(I wonder if that is some kind of lawyer fantasy. No real evidence to speak of. Just one lawyer, just one argument. Mano y jury-o.)
Anyways, what I am pointing out here in The Final Word is that his argument shows a pattern of deception and manipulation, and a strangely large number of "misstatements".
For example...one thing the prosecutor would have the jury believe is that Kirstin Lobato let Duran Bailey think he would get sex for drugs, but brutally murdered him instead. That was Kephart's argument, the basis for his theory on how Kirstin and Bailey would have come into contact. He needs to undermine her unwavering insistence that she was unexpectedly attacked by an unknown assailant, and he does this by implying that there was nothing unexpected about it (simultaneously pitching the premeditation needed for first degree murder).
In the last argument the jury would hear before going back to deliberate over Kirstin's fate, Kephart said (the following comes from the court transcripts):
“This case involves a puzzle and each one of the people that are involved are a part of that puzzle. What does the defendant say to Dixie happens on the 18th of July after the murder? Tells her a man propositioned me. Where do we hear the same theme? Korinda said the words proposition. It’s interesting that [Kirstin] would use those words when she’s talking about supposedly defending herself from a rape. How many rapists have you heard, when a victim says he propositioned me while he’s raping me.”
He's arguing that Kirstin is lying about the events that she said happened, because a proposition by itself does not amount to an attempted rape. What's more, he's arguing that these are Kirstin's words to others, implying that she had a different story at first. But here he has to slip into deception and factual lies. Oops...I mean, misstatements. Really. And it is only coincidence that the statement above is the one directly after the one I wrote about in my last post. Really.
Anyhow, he points to what Dixie said in court. Did she bring up the word proposition? No, Kephart did. Twice. And he wants her to say that word. He wants it bad.
Q [Kephart]: Okay. Did he say – do you remember using the word that he propositioned her?
A [Dixie]: I don’t think I said propositioned. I may have said propositioned but I think – when I say proposition, I don’t mean, I don’t mean like a hooker."
And the second time (Q and A are the same as above):
Q: Okay. And the last thing here was that you don’t remember or you think it might be your words when you say that this man, according to the defendant, propositioned her?
A: I don’t think – okay, I may have used the word propositioned but I was not thinking in terms of a man coming up and asking her to do sex for money.
A: That’s not what I meant.
He never asks her to read the statement to refresh her memory, as he did a few dozen times with both her and other witnesses. Why not then? Because it would put the context of her words in her mind. Because this is what she said to the police:
"…I got the impression, but this is only my impression, that he may have, ahm, tried to talk to her, proposition her, or do something, and that she tried to just brush him off and get away…”
Obviously, "proposition" is Dixie's choice of phrases, specifically referring to her impression of the events Kirstin was telling her about. But she never says that Kirstin told her any kind of conversation involving a proposition (or similar) took place. That is in direct defiance of what Kephart just said. "What does the defendant say to Dixie happens on the 18th of July after the murder? Tells her a man propositioned me." Umm, no. Kephart just wants that to be the case, wants Kirstin to have said that to Dixie, and needs the jury to believe that is what happened.
Now, onto this rhetorical question-and-answer:
"Where do we hear the same theme? Korinda said the words proposition."
Umm, no actually, she didn't. Not once.
So, he supported his argument by leaning on a word he himself took out of context and pressed upon a witness who denied that it meant what he wanted it to mean, and then further bolstered his argument with a...ahem...misstatement.
Nice going. Really stand up material for a defender of the People of the State of Nevada. A real gosh darned credit to his profession.
This case does involve a puzzle, though. He's right on that, but not about what puzzle. The real mystery is this: how, with our legal justice system, was a young woman convicted of a crime she did not commit? A crime that sentenced her to spending a minimum of 40 years in prison at the age of 19?
I'm really good at puzzles. And this part I'm piecing together at the moment looks exactly like an overzealous and unethical prosecutor.