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9.24.2003

Remain Silent

Your right to remain silent is probably the most valuable right you have when being questioned by the police, especially if you are innocent. There is, however, a strong social prejudice against the idea of invoking this right. After all, if you are innocent and have nothing to hide, why not speak openly? The line that traditionally comes after your right to remain silent is the answer to that question.

Anything you say can and will be used against you in a court of law.

This is no joke. They are quite serious. It says nothing about being used against you if you are guilty, or about you being exempt if you are innocent. And whoever you are, take note, because it the chance of the law being wrong about you has just become a whole lot more dangerous with U.S. Attorney General John Ashcroft demanding that prosecutors apply the most serious charges possible to almost all cases.

The police hate it when you invoke this right. They will try very hard to get a statement out of you. Depending on their training and the situation, they will appeal to your values, try to intimidate you, degrade you, trick you...anything to get you to make a statement. I've seen all of that firsthand. I've seen them get angry, even furious, when that right to be silent is called upon. But your statment will not help you, because anything you say can and will be used against you in a court of law.

If you're thinking "not if I didn't do anything," then read on. Here's how Kirstin Lobato's statement turned into the conviction of an innocent person. Everything in quotes has been taken from the official transcripts (bold words in brackets are my addition):

Kirstin Lobato defended herself from a rapist in May, 2001. On July 9th, 2001, a man named Duran Bailey was killed. Two weeks later, the police - having heard the account of Kirstin's defense - came to her home. They had not heard when her act of self-defense occurred before the interview. As you will see, they would also ignore it later (again, I remind you that what you say is used against you, not for you).

I'm going to refer to the statement she gave to the police to illustrate this confusion about time frames:

Question (officer): "How much do you weigh?"
Answer (Kirstin): "I weigh like 120 pounds. I probably weighed a close - closer to a 100 then."

I'll admit that it is within the realm of possibility to gain 20 pounds in two weeks. Sort of. So here's more compelling evidence from later in that same statement:

Question (officer): "And how soon was it that you talked to her [another of her attacker's possible victims] before you were attacked?"
Answer (Kirstin): "It was afterwards already."
Question: "After you'd been attacked?"
Answer: ""Yeah this has already been over a month ago."

She was questioned two weeks after Duran Bailey was killed. She did not know the time frame they were speaking of. But here she clearly states that it was over a month past, not two weeks past. Both the officers and the prosecution disregard that. And did Kirstin Lobato know when they were talking about? From the testimony of the officer who interviewed her:

Question (defense lawyer): "...you never asked her where she was on that weekend, right, July 8th, July 9th?
Answer (officer): "Not specifically, no."
Question: "Generally?"
Answer: "We asked her if she could remember when this happened and she could not specifically."

I'd say that establishes quite clearly that she did not know when the officers were referring to.

So here's how it starts. The officer testified about his comments when he first arrived, before taking the statement. Among other things, he says:

"...I told her that we understood that she had been attacked in Las Vegas and had to defend herself."

Her taped statement begins with him saying: "I explained that we're here to investigate a death..."

I think this also makes it clear that before even making her statement Kirstin Lobato has already heard that they want to talk about her attack and that it has led the police here to talk about a person's death. They gave her no reason to believe those two events were not tied together, especially considering that she did not yet know the time frame.

From the taped statement:

Question (officer): "After you got done struggling with him, was he on the ground or standing up?"
Answer (Kirstin): "He was on the ground."
Question: "Was he making any noise at that point?"
Answer: "He was, he was crying."
Question: "And what did you do next?"
Answer: "I left."

At this point she has not been told how Duran Bailey died. It was brutal, to the point that whoever killed him had to have known they had murdered him. It was truly that severe. But for all Kirstin knew, her attacker could have crawled off somewhere and died. But this statement implying that her attacker was still alive was yet another phrase that was disregarded. Continuing from where I just left off:

Question (officer): "Did you move him at all anyplace?"
Answer (Kirstin): "No."
Question: "Did you use anything to cover him?"
Answer: "No, 'cause I figured nobody would know, you know, nobody was around, nobody cared so I figured nobody would care if I just drove off (crying). I didn't think anybody would miss somebody like that."

Kirstin Lobato knew that a man attacked her, that she stabbed him, and now everything being implied to her was that he had died. Yet that phrase: "I didn't think anybody would miss somebody like that" was used to paint her as a cold-blooded killer. Used against her in the court of law, while stating she had left the scene with him crying was not.

This truly is standard operating procedure for using statements against you. They pick what they want and leave the rest out. Or excuse it. Many statements made by Kirstin Lobato were disregarded by the prosecutors under the claim that she was in a drug-induced haze and therefore confused. But only the words they chose to believe. She had been on drugs when she was attacked in May, but not on any day when Duran Bailey could have been killed. By that time she had been trying to get clean in Las Vegas, eventually deciding that it would be far easier in her much smaller hometown. From the statement:

(Kirstin): "I came home on Friday the 13th to get clean. I mean I stayed away from it [drugs] for like two weeks while I was down there but it was hard 'cause I knew where to go get it. I had to come back home."

The prosecutors point out that there was only one Friday the 13th in 2001, and that was in July. Of course, they meant to imply that she was talking about right after the attack, though she never says that Friday the 13th was right after the attack. And an accidentally well-timed urine analysis - taken for unrelated reasons - proved she was not on drugs during that time, but that did not stop the prosecutors from blaming the following discrepencies between her account and theirs on drug use:

Question (officer): "Okay, you remember how tall he was?"
Answer (Kirstin): "He was really big, that's, and he seemed like a giant to me."

Kirstin is 5'6", and weighed somewhere between 100 and 120 pounds. According to the medical examiner's testimony, Duran Bailey was about 5'10 and weighed 133 lbs. Yes, larger than her, but hardly a giant of a man. Still, this can be argued either way. I only bring it up because it puts more weight on this situation. So I'll go on.

Question (second officer): "And when you said this struggled occurred, where did it first happen at, in the proximity of the parking lot?"
Answer (Kirstin): Um, from Boulder Highway, if you're looking at it from Boulder Highway, like from where the shopping center [note that] is across the street say, right over here in the parking lot."
Question: "___________(Both talking at once)"
Answer: "Like right around from the fountain [note that too], it's right in front there."
Question: "And you're pointing to the left side of the fountain?"
Answer: "Yeah, on the side..."
Question: "As you're facing it from Boulder Highway?"
Answer: "Yeah if you're facing it, the fountain's right here, it's right over here, 'cause the, the thing goes in the, in the spot like that.
Question: "And how close was your vehicle at the time?"

I include that last part to point out that they are in fact talking about her attack. They go on to discuss whether they moved during the struggle. But the point is that Kirstin Lobato described the place the attack occurred. She was staying at the Budget Suites on boulder Highway, near a street called Nellis.

There is an Albertson's shopping center there. Budget Suites had a fountain. Duran Bailey's murder happened in the parking lot of bank next to a dirt lot on the other side of town. No shopping center. No fountain.

The prosecution presented her memory of the location as being confused, her brain addled because of drug use. How convenient for them, and nice of them to push that line in spite of medical evidence to the contrary.

One last item of note. The prosecution has said this testimony was compelling evidence:

Question (prosecution): "And did there come a point in time while you were at her residence that you showed her or produced a photograph of the -- of Duran [the victim]?"
Answer (same officer who took the statement): "Yes, I did."
[skipping some non-material conversation here regarding the photo's origin]
Question: "And when you showed that to her, what was her response?"
Answer: "I showed it to her after we were done taking the statment..."
[skipping a narrative about the kind of photograph and how the officer retrieved it]
Answer: "And I merely unfolded it and walked up -- she was standing in her living room -- and I didn't say anything at all, I just opened it up and held it out in front of her. And as soon as I held it out and she looked down at it, her eyes began to well up and tear again. And she said I can't identify him. I put him out of my mind."

She said she couldn't identify him. The prosecutors have leaped on that phrase, "I put him out of my mind," as though that was evidence that she remembered him, but had shoved it away in her thoughts. Faced with photo of a man she thought she had killed, she cried. And she said she could not identify the man in that photo. Perhaps it was because she had pushed him away from her mind. But given all that had been said during the conversation between her and the police officers, it appears far more likely that she couldn't identify him because she had never met him before in her life.

Free Kirstin Lobato.


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