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9.18.2003

Malice Aforethought

No, I'm not referring to Kirstin Lobato. I'm talking about the District Attorney's office.

There is a saying about not being able to see the forest for the trees, meaning that a person is concentrating so much on the minute details that they do not understand the nature of the greater picture. In the forest of justice, "technicality" is often the major species of tree. I often hear the phrase: "he or she got off on a technicality." But it should also be known that prosecution uses these technicalities just as much as the defense does, and are just as likely to do so without so much as a nod towards fairness or nobility.

The district attorneys in this case based their claim of murder on the concept that Kirstin Lobato viciously attacked Duran Bailey in a rage induced by a sexual confrontation and reinforced by her use of drugs. They claimed that, along with causing many other injuries, she stabbed him in the anus. Because of this, they also made a choice to charge Kirstin Lobato with a second count, besides murder. That charge was Sexual Penetration of a Dead Human Body.

In the defense's motion to dismiss this, there was a very detailed discussion on both sides of the fence about the nature of the wounds and the meaning of the statute in terms of what the prosecutors believed happened. The district attorney argued that the technical language of the law would allow this charge to be properly included. He also argued that he only needed to show that there was a slight likelihood that the crime had happened, and the courts agreed.

That what happened, exactly? Sexual Penetration of a Dead Human Body was designed to punish necrophilia, not entrap a defendant.

Aside from the fact that Kirstin Lobato did not kill Duran Bailey in the first place, the prosecution claims this was a case of brutality brought about by extreme anger and viciousness, an overkill defense against rape. Yet, they then apply an anti-necrophilia statute, despite the fact that there was no reason and no evidence that anyone in that situation would have had the intent to commit necrophilia.

The prosecutors then attacked the idea that the charge was limited to sexual gratification, pointing out that it punishes the use of any implement being inserted into the vaginal or anal opening of a dead body. They lean upon this technicality, saying that it should not be limited to sexual gratification. What is left, then? Sexual in medical terms? The anus is not a part of the body designed for sexuality in medical terminology. So what is the prosecution saying this applies to?

It was a pure exploitation of a technicality on their part. Let's back up a second and look at the forest again: Sexual Penetration of a Dead Human Body was created to punish necrophilia. But the prosecution is taking the letter of the law and applying it to a case where it shouldn't fit in the first place.

You can't take a cactus and place it the forests of Virginia and then declare that the state's now a desert "because that's where a cactus grows." But that is what the prosecutor's have done by inappropriately applying that charge. Furthermore, their victory in blocking that charge from getting dismissed would lead to more damage later, when the technical definition of the crime had already been twisted to apply to Kirstin Lobato.

The district attorney's office decided on this charge before the preliminary hearing. When they were confronted on the matter later, they defended it with the use of twisted logic. All of which was done, as they say, aforethought. And to apply that technicality in defiance of reasonable scope is a terrible misuse of prosecutorial power. The only purpose it could have served was that of "sticking it to her." And especially by virtue of the presumption of innocence, they had no legal cause to do that.

And that...the desire to do someone harm without legal cause to do so...is malice.


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