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10.02.2003

Let's say I had a $100 bill. Would you want it? I mean, no strings attached. Just "Hey, do you want a hundred bucks?"

Okay, yeah...why not? Well, what if I crushed it up into a little ball? Would you still take it?

And what if I threw it on the ground and stomped on it? Would it still be worth something to you?

Well, it is a hundred dollars...probably useful for something. But would you still want it if I told you that the guy I got it from directs porn movies? Or that this bill was used in a drug deal? Or that once it was exchanged for a stolen DVD player?

I'm guessing you would still take the hundred. And why not? It still has value, no matter what its history was, or what it's gone through. Same thing tends to hold true for human beings. We get crushed. We get stomped on and rubbed in the dirt. Sometimes our history isn't all that clean. But whether clean or dirty, worn down or crisp and new, we still have value.

Just a thought.


Reasonable Doubt - Part 2

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?
A: Yeah.
Q. Doing meth?
A: Yeah.


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.


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.


9.29.2003

Jailhouse Informants

Korinda Martin was a jailhouse informant. She was one of three main groupings of evidence the prosecution tried to use to bolster their case against Kirstin Lobato (the other two being Kirstin's statement to the police and a shoddily woven tapestry of circumstantial "it's possibles"). But there are a number of reasons that I believe that the use of jailhouse informants violates the constitutional right to a fair trial.

It actually doesn't go to character too much. People to tend think that "criminal = total badness," when the truth is that they could certainly have positive characteristics despite their choices. So, by itself, the preconception of criminals being liars is not going to be well founded in all cases. Nevertheless, they are often given what they would see as good reasons to lie.

For one, they can hope that by aiding the prosecution, they aid themselves. While no prosecutor in their right mind would ever promise to help out an informant prior to the trial, they can certainly imply it without saying it. And this is rooted in a simple value system. The things prisoners value are few: intangible items such as power, prestige, and survival. But it is freedom that probably ranks the highest...and the sooner, the better. And as I said, the prosecution won't openly make this promise. Almost every case involving a jailhouse informant involves that person assuring the jury they have been promised nothing, even as they knowingly screw over another person in an attempt to cheat their sentence and gain freedom, or earlier access to it.

And here's where the lowest common denominator comes in. Everything has been taken away from a prisoner. They are socially shunned, locked away, given only the barest of personal items and no sense of privacy, in a place that can be unpredictably wild and violent. In short, they don't have much to lose, and as I've said before, the most dangerous person out there is someone who feels they have nothing to lose. Inhibitions that might otherwise hold them back get stripped away.

So on that basis alone, prisoners should be banned from giving testimony to the state, though I do think that released prisoners who are not facing any charges should be able to inform the jury of what they may have heard during their time in prison. After all, they are no longer in a situation where they have nothing to lose and something to gain by violating the truth at the expense of someone else.

Korinda Martin is a particularly good example of this, because she had shown she would try anything to get out of prison, including the creation of false letters (not to mention numerous attempts to contact anyone who might be able to help her). This would not be a person I trust if she had any possibility of gain whatsoever. Her forgeries and her testimony in court showed that she obviously looked out for herself first, and would do pretty much anything to gain her freedom.

Aside from that, I also think that it is not unreasonable to examine the social atmosphere of a prison. It has, by all accounts, an extremely volatile social code based on power and prestige. And we're not talking about the community service worker kind of prestige. But, as an example, what a person has been charged with or convicted of is of great interest to prisoners, and the kind of crime goes a long way towards their initial placement in a prison's social ladder.

In such an atmosphere, I don't think it would be unlikely for a person - especially those without prior records - to express bravado about certain charges in an attempt to stave off abuse. I have heard people who have never been arrested make outrageous claims about what they would do and say "if they ever went to prison," and little of it had to do with honest self-representation. Lie or not, such statements were all about self-protection and survival. In short, the very social atmosphere is not a healthy environment for the flourishing of truth. And although I really don't think this was the case for Kirstin Lobato, I still think that there is great potential for an innocent person to lay claim to certain "power" charges in order to establish a stronger social standing (for personal survival, if nothing else). So by that, I think that what people say in prison about the allegations against them should be judged with extreme skepticism, especially when the testimony that comes from that could be unintentionally tainted by the innocent indivdual themselves. Prison society itself can act as a form of a coercion for making self-damning statements. And in a case like that, the prison informant wouldn't be lying about what they heard.

There are too many potential problems with prisoner informants such as Korinda Martin to expect reasonably accurate testimony. If the police and labs and prosecutors must go through such great pains to keep forensic evidence secure and untainted, why allow the drawing of witnesses from an atmosphere where statements are so likely to be tainted? As it did in Kirstin Lobto's case, the effect of a prisoner informant can undermine the fairness of a trial. I believe it to be an unconstitutional practice.


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