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10.01.2003

Reasonable Doubt - Part 1

Bill Kephart, the lead prosecuting attorney in Kirstin Lobato's case, is deceptive. Time and again in her trial, he used misdirection to support his theories, and used words of conviction to conceal faults in his logic. And he's slick. So much so that I wonder if he would be willing get into a debate about what the meaning of the word "is" is.

Or how about the word "has," perhaps?

Kirstin Lobato has said she was attacked and defended herself from a rapist in May, 2001. The prosecution has said her story is actually about the murder of Duran Bailey on July 8th, 2001. Furthermore, Kirstin Lobato had given a taped statement to the police 12 days after that murder and prior to being arrested, in which she stated that the attack happened over a month before. This was part of her defense, but watch how Kephart tries to twist it to fit it into his theory that Kirstin Lobato murdered Duran Bailey.

This is Kephart's closing argument, taken from the court transcripts and recorded verbatim (bold added by me):

"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."


This convoluted argument tries to minimize the middle two lines in favor of emphasizing the last line. If you're trying to think about how it makes sense, you're trying too hard. The goal here is to make this statement - the one that is so damaging to the prosecution's case - murky and incomprehensible. Just read it. It's clear what it says. Kirstin Lobato is talking about the attack coming before the conversation, but Kephart tries to make it sound like she's only saying that the conversation had happened about a month ago. Though of course he meant to say that the conversation has happened about a month ago. Because that's what the taped transcript actually says:

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 has already been over a month ago.


The difference is that "has," in context, covers the subject of the taped statement in its entirety, whereas "had" can be used to target just that one thing Kephart wants to point out - in this case, the conversation. That is a subtle sign of deceptive presentation that many people wouldn't catch, I think, or even find important. But in the context of his argument, that little substitution can mean more than "oops." Then again, it could have just been an honest accident. But I don't think so...the word "had" serves his next statement better than "has" would. It is part of the prosecution's pattern of deception in this trial.

Aside from that, however, even when Diann Parker was on the stand in the same courtroom as Kirstin Lobato, there was no evidence that they knew one another. They didn't even ask her if she knew Kirstin Lobato, and you can be sure with a line in their closing argument like the one about Diann Parker, the prosecution would have tried to establish that Lobato and Parker had at least met once. But they did not. They came up with the concept afterwards, and tried to use it to bolster their case once the witness had gone.

But that wasn't even close to the only poorly proven idea they pressed hard in their arguments (the title of today's blog is "Part 1" for a good reason).

Douglas Twining, Kirstin Lobato's ex-boyfriend, is a man who is a bit rough around the edges socially, I think. A stubborn guy. And no one is going to put words in his mouth that he didn't mean. More from the court transcripts:

Q Now, when you went and picked up Blaise on the 8th or early morning hours of the 9th, you were bringing her back to Las Vegas --
A I was bringing what?
Q -- you were bringing her back to Las Vegas?
A. Uh-huh.
Q So that you guys could lay low?
A Just kick back, yeah.
Q Okay. So -- but you told the police, your terminology was: You laid low between the 9th and the 13th?
A I don't recall if I said that or not.


So the prosecutor (this time it is not Kephart, but his co-counsel, Ms. DiGiacomo) goes and gets his taped transcript, to prove that he did in fact say "lay low." Now, everyone knows how that sounds. The prosecution uses that term repeatedly, in both closing and opening arguments, trying to hammer home the concept that they were laying low. So, Twining reads his statement to refresh his memory, and the prosecutor tries to verify that he did in fact say "lay low." Twining ends up forcing her to put it into context, because it is obvious that Twining won't drop the matter until it's presented honestly.

A (Witness reading) Okay. Yeah.
Q Okay. That refreshes --
A That was regard to Steve and Cathy's --
Q Wait, wait. Let me stop you, sir. After reviewing your voluntary --
A Don't take my statements out of context though.
Q Well, I --
A Okay.
Q Let me --
A Thank you.
Q Let me ask the questions, please. After reviewing your statement, page 10, does that refresh your memory as to what you told the police regarding what you were doing the week between the 9th and the 13th?
A Yes, ma'am.
Q Okay. And your statement was you were laying low. And then you added: Because you didn't want to have to deal with Steve and Cathy's bullshit.
A Correct. Thank you.


I almost felt sorry for her. But he wasn't talking about hiding out from the authorities for a murder, he was talking about avoiding people they didn't want to associate with. And he wanted to make sure his words weren't twisted in that courtroom. That was not the end of it, either. Much later, when the defense had come back to question him again, the following occurred. Watch the prosecution scramble to handle damage control. Ms. Navarro is co-counsel for the defense.

MS. NAVARRO: If I may approach, Your Honor.
THE COURT: You may.
THE WITNESS: They twisted a lot of what I said around too.
THE COURT: Wait for the next question, please.
MS. NAVARRO: Just read this to yourself.
MS. DIGIACOMO: Objection, Your Honor, move to strike what he just stated.
THE COURT: Sustained. Motion granted. Stricken.
THE WITNESS: They did twist a lot of stuff what I said.
MS. NAVARRO: Shhh, just read this to yourself.
MS. DIGIACOMO: Your Honor --
THE COURT: You need to wait for a question and then answer a question.


Obviously, the prosecution didn't want people thinking they were twisting the truth. Which, is of course, exactly what they were doing. Twisting it to fit their theory. Twining just happened to be the kind of guy who wouldn't let that just slide.

More to follow.


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