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9.19.2003

Conflict

I'm pretty familiar with confrontation. I even enjoy the competition of it, though that always depends on what the conflict is about and what form it takes. But the main reason I enjoy combative situations is that I am good at it. Or, to put it another way, I'm not used to losing.

Now, I'm not talking about physical combat specifically (although I'm not excluding it either). What I mean is that I understand strategy, from planning to analysis to tactical adjustment to exploiting weakness to effectively allocating resources. In short, I know how to "play the game to win," or I else I don't "play" at all (and trying to get me involved in a conflict when I don't want to be is confrontational in itself, so there's a vicious circle to fall into - and it's certainly not going to be my circle). I grew up in a survival-of-the-fittest environment, and the battle mentality I had then has since developed itself into a knack for troubleshooting. I have a history of developing effective strategies to deal with problems...any problems.

I don't mean to brag here. I'm just trying to establish that I have credentials on the subject of conflict, so to speak.

In Kirstin Lobato's we've got two sides in conflict: a pair of prosecutors trying to convict her and a pair of public defenders trying to maintain her innocence. The winner in this conflict will be decided by the jury. This is the basic field upon which the confrontation exists. The ability of both the prosecution and the defense to accomplish their goals - by meeting the burden of proof or creating reasonable doubt - is what the jury will base their decision on. Though I have become familiar with only a part of the trial so far, there are important things to note about these two sides, primarily Bill Kephart for the district attorney's office and Phillip Kohn of the public defender's office. Their approach to this situation speaks volumes about how the jury came to believe Kirstin Lobato wasn't innocent.

Beginning with Kephart... I definitely recognize his style. It is self-assured and unforgiving. He comes into the court stocked with the information he needs to win, and prepared to force outside problems into the focus of his argument. That is, he is ready for surprises, and ready with contingency plans that will - if possible - make those problems work for him. He also gives no quarter to the defense, because this is a conflict he fully intends to win. Everything he does is carefully organized not only to defend his method of attack against the defense, but also to score points with the jury. He's also experienced, and knows when to argue so as to get greatest impact possible under the rules of law. He knows how to argue in order to maintain wiggle room, that is, to allow himself maneuverability. He also pre-emptively covers ground he knows the defense has no intention of crossing, just in case they decide to. In many ways, the prosecution's approach reminds me of the old Roman army phalanx that was a tightly organized and disciplined formation that nevertheless possessed a fair amount of mobility (though not swift by any means), and which was designed so that if any soldier (read: argument) fell, another could immediately step up and take his place, thus protecting the cohesive integrity of the rest of the unit.

Phillip Kohn has a different style, which in my opinion would naturally be largely ineffective when directed against the prosecution's. I would no longer call him inept in terms of knowing how to do his job, because he knows (how to do his job well is another matter entirely). But he has a strategy. It isn't great against Kephart, but it's there. It involves peppering his opposition with shots, either wearing them down to the point of disintegration or by chance striking a crucial area, thus crippling or killing his opponent's argument. There's a relentless quantity of attack on his part, but little in the way of focus or timing. He is also content with arguing his objections to the judge rather than the jury, because it is the judge that can give him credit for a crippling argument, not the jury (for example, he attempted to get a mistrail based on prosecutorial misconduct - outside the presence of the jury). In focusing so much on the judge, he failed to bring the right evidence to light for the jury. And when his judge-oriented strategy failed, he had not done enough to affect the jury...the only people left who could grant victory. He also did not come in very prepared - though this may be a natural weakness of the public defense office due to overloaded scheduling.

But the main problem between these, and the reason I could say with certainty that Bill Kephart would win, is that Phillip Kohn is an apologist.

I don't know why he does it, but he does. Whether he is attacking something offered by the prosecution or arguing for the court to make a decision or pointing out problems, he allows leeway. He points out that things are not the prosecutor's fault, or the police are "just doing their job," etc. He even apologizes for his own arguments. This is done as a matter of course, as though he is really trying to remain friendly to all - and perhaps he is. By being likeable, he can probably sway people. But what ended up happening in Kirstin Lobato's case is that Kohn gave quarter, and Bill Kephart did not. This would not be a good situation to begin with. If you add on the fact that Kohn's style was too indirect and less determined compared to Kephart's, the public defender's congenial commentary was strategically suicidal.

But he loses nothing, by losing this battle. Kirstin Lobato does.


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