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.


Okay, before I go any further, I want to note that I have recently been able to review the court transcripts. Though I am not finished with that, I feel I must openly admit that some writing in my earliest blogs contained discrepencies not in line with the court documents, but were instead inferred based on the information I had gathered. There were very few. I am not going to recant any one those past statements, though, for these reasons:

1). I meant them when I said them. I am doing this only in the interest of honest disclosure.

2). Because the statements of concern are primarily incorrect because I took creative liberties in how I presented them, NOT in writing about facts, such errors do not shift the focus of the argument or weaken any value of evidence presented on Kirstin Lobato's behalf. Therefore, I think the effect is very minimal in terms of damaging this blog's intent.

3). I shall be reviewing many of these subjects again on this blog, utilizing the the court transcripts.

If anyone wants to know precisely what these discrepencies are, email me, and I will be glad to explain them in full detail. This admission shouldn't apply to the most recent blogs (from the past week or so).


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.


Nobody's Perfect

It's a phrase tossed out so automatically that it has become cliché. Anyone who understands human nature to even the smallest degree - or who is over the age of ten - knows that no one is perfect. And yet, the dismissive nature of this statement hides an often dangerous aspect of social reality: not being perfect can be a great crime.

This is an age when imperfections destroy people in public as a matter of course, from politicians to stars to anyone accused of a crime. While the character of those who commit crimes is important, and to dismiss their actions as being merely part of the imperfect nature of human existence would be irresponsible and foolish, bringing the past to life while ignoring a present reality can be both callous and destructive.

Take, for example, our current President. I am no ideological or political friend of his, and yet the public ranting against his AWOL while part of the armed services irritates me. It is an occurence 30 years in the past, and while it may speak to his character, it also may not.

Society has a strange inability understand the concept of evolution of character, or advancing beyond one's past mistakes. I find this a very strange phenomenon, considering society is mostly made up of people who do that very thing. We are not machines. We can act outside our programming.

Granted, this evolution is not always the good kind. Some criminals evolve into worse criminals. Some politicians find deceit to be a way of life, and simply become better at it. This makes it all the more important to examine a person's current lifestyle if you are going to pass judgment upon them for past trends (more on why that's important in a moment).

In Kirstin Lobato's trial, the prosecutor launched several scathing character attacks, and even twisted her past traumas into motivation for crimes. Central, of course, was her history of drug use. Nevertheless, the reality at that time conflicted with history, because Kirstin Lobato had begun to try and transform her lifestyle into something healthier. The prosecutor was not ignorant of this fact. He flat out ignored it, repeatedly chalking up any imperfection in his re-creation of the crime to her "three-day metamphetamine binge." His point: her perceptions were skewed, because she was on drugs and had a history of drug use.

This ignores the fact that she was trying to change that. Her reference to being on drugs was from months in the past, when she defended herself against a rapist (not Duran Bailey, the victim of the crime she was convicted for). The prosecutor then went on to ignore the fact that she was not on drugs during the time frame he needed her to be on drugs for the validity of his re-creation. And it's not that he didn't know the truth. This is from the court's minutes May 17th, 2002:

Court stated it will advise the jury state's exhibit # 133 was admitted and that the urine sample was tested for the presence of meth on July 5 and none was found.

I'll "advise" the reader that the state's exhibit is the prosecutor's. They ignored their own evidence of her innocence. Kirstin Lobato was trying change her life, but the very meaning of that endeavor was shut out by the need for a conviction.

So, apart from the obvious injustice here, there is another reason people should care about what is going on: there is little motivation to change your life for the better if that act is rendered meaningless in light of one's own history. I know there is little motivation because I have seen what it does to people, especially young people (Kirstin Lobato was 19 at the time of her trial, 18 at the time she was arrested). I've witnessed people choosing to go out in a blaze of personal glory rather than face those that would condemn them no matter what, and in all my life I have never seen anything so tragic as watching emerging potential be demolished by the prejudices of society. And the despair that results from that does become motivation...but not the motivation to better oneself. There is nothing more dangerous than someone who feels they have nothing to lose.

We should support the attempts of others to become better people, if only so they don't look at their honest attempts and say "the world considers this effort worthless." Kirstin Lobato should have been given acknowledgment for working to overcome her history, especially because she had been successful at it. And it certainly had weight and meaning in this trial, because it was part of the heart of the prosecutor's argument.

Should society just erase the concept that self-improvement has any value? If we do something society disapproves of because of foolishness (or poor judgment, or any of the other fallacies of being human), should we cast aside any future that is not a lonely one, lived in fear of notoriety? Are we, as a society, ready to tell our children that any grevious mistake they make should herald the end of their dreams?

That message has already been sent.

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