The U.S. Supreme Court has set down this standard: the prosecutor's duty in a criminal prosecution is not that it shall win a case, but that justice shall be done. In pursuit of that duty, there is no just reason for trying to establish a burden of proof based on unproven facts.
For example, in the defense argument Kirstin Lobato has been at home - roughly a two or three hour drive from Las Vegas - from July 2nd, at least, until after the time Duran Bailey was killed. In the State's theory, she went down to the area in Las Vegas for a few days after the 5th, and did not come home until after the murder. To express this theory, both prosecutors point to a phone call made to the police by Becky Lobato, the defendant's mother, a few days before the murder. In her testimony, Becky Lobato said the call was about a missing truck. During the prosecution's closing arguments (they get two closing arguments, while the defense gets one in between), they clearly imply that Becky Lobato is searching for her daughter because Kirstin is not at home. And how do they know this?
They don't. They're just saying it. Or if they do know the truth, then this is a downright insidious setup. And the defense counsel properly objects. The court overrules. From the transcripts (this was Ms. DiGiacomo presenting the prosecution's theory during final arguments, with bold in brackets added by me):
The defendant's down there [in Las Vegas]. Her parents, they're looking for her, though. If you look at the phone records, there's a call to the police department. They don't know where she is. And she's not there on the 7th either.
MR. KOHN: Objection. Misstates the evidence as to why they call the police.
THE COURT: Overrule.
Why overrule? Because it's a legally legitimate part of "argument," and the State wants to argue that Becky Lobato would lie to protect her daughter. Later, during Mr. Kephart's argument, he alludes to the phone call again, though very briefly. But this time he is careful to include Becky Lobato's testimony, that the only phone call made around that time to the police had to deal with a stolen vehicle. He states:
"The next phone call is to the police department calling about a truck or looking for their daughter."
He still chases the comment about truck with the possibility they were looking for Kirstin Lobato, and surely he knows that things said last leave a greater impact. He is a lawyer, after all. But what is the truth? Well, for that, we can just go to the County Sheriff's Department record of calls from the Lobato household for 2001:
Incident #2011570 Case #201152 May 13th, 2001 / Missing Person Report
Incident #2012278 June 27, 2001 / Questions about Stolen Vehicle
That missing person report is from May, when she was in Las Vegas, and just before she was attacked around Memorial Day. No sign of "called looking for daughter" after that, though there's the missing truck.
That's using unproven facts.
So let's go on to how the prosecution shuttles around facts, using them when convenient and ignoring them when facts make their argument inconsistent. The following are all undisputed facts:
Fact One comes from Kirstin Lobato's taped statement before she was arrested (Q is the officer, A is Kirstin Lobato):
Q: So that [the attack] was the end of the third day of being up straight?
Q. Doing meth?
Whatever you may think of drug abuse - and from a personal standpoint, I despise it - this establishes that Kirstin was doing meth (a type of hallucinatory speed) for three days prior to her attack. The prosecution embraced this statement, using it to do away with anything she asserted that didn't fit their theory, based on the idea that her memory would be unreliable. I'd also like to point out that later in her taped statement she makes it clear that she had been trying to leave drugs in her past...an admirable endeavor, in my opinion. Her success in that area is supported by Fact Two.
On July 5th, because she had been feeling ill, Kirstin Lobato went to the doctor and had a urine analysis done, along with a follow up one day later. She was afraid she was being poisoned, and they tested for all kinds of drugs. Personally, I think she was going through psychological withdrawals because she had been trying to get away from drugs, but that is just supposition.
The resulting medical report was entered - ironically - as a State's (prosecution's) exhibit, and the doctor's notes were used to support their argument that Kirstin Lobato did not see the doctor about depression until after Duran Bailey died. Nevertheless, the medical report makes it absolutely clear: there is no sign of meth in her system on the 5th, or on the analysis from the 6th. That is undisputed Fact Two.
Fact Three is that Duran Bailey was killed sometime on July 8th. According to the coroner, this could have been anywhere between just after midnight until almost 2:30 in the afternoon. The prosecutors made a big deal about Kirstin Lobato saying she was attacked at night, or perhaps early in the morning, because that is within the time frame that Duran Bailey could very well have been murdered. So they point to early morning on the 8th.
(If I may digress into sarcasm for a moment...we all know that particular time frame is a great support for their theory. After all, it would be such an unusual coincidence to find both raping and murdering going on openly in the streets during the early hours of morning...as opposed to, say, a more reasonable time like noon.)
But either way, those three undisputed facts of evidence are notable, especially because of how the prosecutors used them, while carefully keeping them apart at the same time. July 5th, urine analysis...no meth. Even if she ran off to Las Vegas that very night (leaving the next day's urine sample behind her for some unexplained reason) and every witness that saw her on the 6th was lying or mistaken, the longest she could have been on meth was two days. The prosecution can't have it both ways, pointing at a 3-day meth binge that left her unable to remember things clearly when it suited their theory and also gloating about the possibility that she murdered Bailey early on the second day of that meth binge. The math just doesn't add up. So what do they do? They just keep those two facts apart, like they have nothing to do with one another.
How far apart? DiGiacomo brings up the urine analysis fairly early in her final argument to talk about the "lack of depression" argument I mentioned earlier. Next, the defense makes their final argument and does a horrible job of pointing out the factual conflict (it looks like Special Public Defender Kohn started to go there, but then he ends up on this entire tangent that skips right past this very important flaw in the prosecutor's case). Finally, Kephart makes his final argument, and goes into great detail near the end about how addicted to meth Kirstin Lobato is and the result that had.
In short, how far apart equals two full arguments.
More to follow.