Ms. DiGiacomo and Mr. Kephart are the prosecutors. Their witness is Korinda Martin.
MS. DIGIACOMO: Okay. You recall speaking to Mr. Kephart regarding what you wanted, a parole board letter?
THE WITNESS: Yes.
Q (By Ms. DiGiacomo) And what was it that he told you?
A He said he couldn't promise me anything.
Q And, in fact did he say anything regarding perjury? Do you remember that?
Q What did he say?
A He say that if I perjure myself he was going to prosecute me.
Martin did commit perjury on the stand, right in front of Kephart. He knows it because the proof was presented right in front of him, too. Yet she has no charges of perjury on her record a year and a half later. What a couple of liars those two are.
I'm doing a study in contrasts today, and the reason for it is simply to show the unbalanced weight of testimony on both sides.
If you don't know what this is about yet, then here's the nutshell. Kirstin Lobato was convicted for the murder and mutilation of a man named Duran Bailey despite reasonable evidence of her innocence. One of the main sources of evidence for the prosecutors was a statement where she told the police she defended herself from a rape and in the process probably injured the man's penis. During the statement, neither party mentioned specific time frames like which days or months events happened on, and this added to the confusion because it was automatically assumed by both sides that they were talking about the same event.
The attack Kirstin Lobato was referring to took place in mid to late May. Bailey's murder was on July 8th, over a month and a half later. Due to a similar wounding on Bailey (the severing of his penis), it was presumed she was speaking about Bailey's murder. However, Kirstin had spoken to several individuals prior to Bailey's murder about the attack she defended herself from, and has also said she was two hours away in the town of Panaca during the early morning night of July 8th when Bailey is most likely to have been killed. The prosecution has argued she was in Las Vegas - where the murder occurred - and their time frame has her Las Vegas from 5th or 6th of July straight through to the 13th.
So, witness by witness in the order they appeared - and using the witnesses' initials only - here is the testimony that was heard about time frames (only witnesses who testified to having knowledge of a time frame that supported either the defense's or prosecution's arguments):
J.D. - Testified that he found the defendant's car in his driveway for unknown reasons just before Memorial Day weekend, which was late May. Kirstin Lobato has said that was where she took her car after the attack, though J.D. was not home at the time.
S.P. - Testified that he had heard about the attack in June, which was prior to Bailey being killed. S.P. also testified that Kirstin had talked about cutting someone's penis off, though he had assumed she was joking or showing some characteristic bravado.
D.T. - Testified speaking to Kirstin about the incident in late July, after Bailey's murder. D.T. also said that Kirstin was upset about it, and D.T. had gotten the impression that it had happened rather recently.
M.A. - Had a conversation with Kirstin the weekend before July 4th about the attack. Bailey was killed on July 8th.
P.B. - Overheard Kirstin's conversation with M.A. in July. P.B. testified that he could not say for sure when that conversation happened. He orginally told the police it had happened roughly a week before his interview with the them in late July.
T.T. - Testified that he was one of two officers who took the taped statement from Kirstin Lobato on July 23rd. At the very start of the taped statement T.T. told Kirstin that he was aware she had to defend herself "a couple of weeks ago" in Vegas. Later in the taped statement Kirstin states that the attack happened "over a month ago."
C.C. - Testified he had seen Kirstin Lobato on the 5th, 6th, 7th, and 8th of July in Panaca.
D.A. - Testified that C.C. had gone to see Kirstin Lobato on the 5th and 6th in Panaca, and had no knowledge of whether or not C.C. saw her on the 7th or 8th.
B.L. -Kirstin's mother, who testified that Kirstin was in Panaca from the at least the 2nd of July until the 9th of July before returning to Las Vegas. B.L. also testified that she took Kirstin to the doctor on the 5th who prescribed an at-home followup procedure, and both days are supported by medical documentation.
Kirstin Lobato - Testified that she was attacked in May. Also testified that she was two hours away in Panaca during the time of Bailey's murder.
D.T. - Testified calling from Las Vegas to Panaca to speak to Kirstin several times from the 2nd through the 9th, and complete phone bill records were presented as proof of his claim. Testified to picking Kirstin up from Panaca on the morning of July 9th and driving her down to Las Vegas.
R.G. - Testified that B.L. had taken a day off work on July 6th specifically to take care of Kirstin because she was sick, and offered logs as proof.
S.K. - Testified to being with Kirstin at her home in Panaca during the early evening hours of July 8th.
J.A.D. - Testified to seeing Kirstin four-wheeling late in the morning on July 8th, in Panaca.
(The source for all of the above was the court transcription of Kirstin Lobato's jury trial.)
There were other witnesses for both the defense or prosecution, but none but the above-mentioned claimed knowledge of time frames (except for forensic experts, whose testimony of time frames regarded purely forensic matters, such as when Bailey died and how long bloodstains last). As I have mentioned before, the prosecution's theory needed Kirstin in Las Vegas by July 5th at the earliest (the blog entitled Reasonable Doubt - Part 2 goes into why). No person testifies that Kirstin claimed her act of self-defense was any time other than May. Even D.T. and P.B., who come the closest to saying it had just happened, do not know for sure. For D.T., she states that it was merely her impression. P.B. says he was not sure because Panaca was a small town and everyone had heard about Kirstin's arrest (and why) and all he knew with certainty was that the conversation he had overheard had happened prior to her arrest.
The prosecution went to great lengths to convince the jury the witnesses were covering for Kirstin or deceived by her family, even submitting their own witnesses to an assault on their honesty (except for those parts that supported their own theory). The defense team did a shockingly bad job at clearly driving these time frame discrepencies home. The defense argument is sort of like: "Well, you heard it yourselves." Compared to the prosecution's direct, step-by-step "this is what happened, ladies and gentlemen" the last impression the defense gave was muddled and vague, whereas the prosecution's final argument was specific and targeted, cleanly cleaving away any problems with their time frame while maximizing what little support they did have.
But if a witness said something about a time frame that supports either the defense or the prosecution, I've put it down here. And without the manipulative (or bungling) presentations of any lawyers, I'd say the weight of all this testimony is heavily on Kirstin Lobato's side. I wouldn't even consider this a close call.
More to follow.
If there is any conduct that truly makes me seethe, it is hypocrisy that harms another person. I don't care that much about minor, personal hypocrisy...like where you tell a single friend they should get out more when you're too shy to go out and find a date yourself. In that sense, personal hypocrisy is like lying (which I also feel should bear vicious consequences if it hurts someone else). It can be irritating, but it can also be the "little white" variety, which is a pretty human thing to do. So it doesn't bother me as much as something like prosecuting attorney Kephart's full blown, two-faced, boasting, I'll-flaunt-my-deception-and-piss-on-the-presumption-of-innocence hypocrisy.
A lot of people working on this campaign are not fond of the defense team because they were rather ineffective, and at many points I would agree that the defense counsel was doing great at proving the definition of 'ineptitude.' But it is Kephart who has earned a truly staggering amount of despise on my part, and I say "truly staggering" because it is unusual for me to not allow room for human fallacy in anybody. But Kephart lacks both honor and ethics, and this combination led to the 40 year incarceration of an innocent young woman. His work has done great harm.
A lot of conversation went on outside the jury's hearing. Important things. Like the perjury of the prosecution's jailhouse informant, Korinda Martin. She was the only person who connected Kirstin Lobato to the victim, Duran Bailey. The following is taken from the court transcripts. They are discussing a letter (Defense Exhibit G), which is a letter to a judge to gain some leniency for Martin's crimes. It was proven to have been written by Korinda herself, under a false identity:
Q (Kohn) I'm going to show you an item marked Defense Exhibit G. Do you recognize that?
A (Martin) No.
Q You didn't send that?
A No, sir.
That is direct perjury, or lying under oath - outside the presence of the jury. She repeatedly denies even knowing of the letter. The police department's handwriting expert believed it had been written by Korinda Martin, and describes it in his report as bearing "characteristics normally associated with disguised writing."
Korinda Martin, about to be sentenced, was going so far as to forge letters to a judge to get out of being held accountable for her crimes.
In the transcripts, there are numerous mentions of her trying to get out of jail. This, in itself, is not unusual for someone who faces incarceration. However, each attempt failed, one by one, beginning from when she was arrested and lasting all the way through to July. In July, the Duran Bailey murder was covered by the Las Vegas Review-Journal, a major - and some could say the major - newspaper for the Las Vegas area. Specific details were given in a July 25th article. These details included all those that Martin says she heard from Kirstin Lobato. Martin also said things that were not in the article as well, but many of those statements were not supported by the crime scene (Kohn never really illustrated this point, and I'm clueless as to why). The facts she did get right were those she could have gotten from a newspaper article.
Then, on August 1st, a week after that article was published, Korinda Martin called the officer in charge of the murder investigation and said something like "Hey, Kirstin Lobato was talking to me back in December when we were in the same prison facility, talking about how she killed this guy." The police were, of course, interested.
Two weeks later she was forging the letter. She also asked the prosecutors for a nice letter to the parole board. The answer she got was: we're not promising anything. That was her testimony, and right after that testimony is a very interesting discussion (this was presented before the jury):
Q (Kohn) Isn't it a fact, Miss Martin, back in July and August you'd do whatever it took to get out of jail?
A (Martin) Yes.
Q Isn't it a fact that you would lie to get out of jail?
Q You would not lie?
Q You would not lie to the Court?
That is something the jury heard. Defense counsel Kohn was setting her up to be impeached, because he planned to present the letter to show she would most certainly try to deceive the court in an attempt to get out of prison quickly. He wanted to point out that Martin only "came forward" after she had failed to gain some leniency and after news articles were published on the matter, and the letters would show her capable of trying some pretty severe deception to escape her punishment. Unfortunately, he ended up looking more like he was just trying to get her to admit she was a liar, because his proof was never presented.
Kephart knew all about the letter because the entire issue was discussed in front of him. So he argued outside the jury's presence that the letter - which was really harmful evidence that his central witness was a self-serving liar - was extrinsic; that is, that it didn't matter because it had nothing to do with whether or not Kirstin Lobato killed Duran Bailey. The judge agreed, and as a result, the jury never got to know about the perjury or why it was so important.
But then came the purely moral hypocrisy. When attacking the defense during his final argument, Kephart came off like the deceptive party was the defense team, not Korinda Martin:
"They say that Korinda has the biggest motive to lie. What do you expect from a murderer when they're charged with allegations of this nature? Did you expect, one minute, the defendant would get up here and admit to everything she said in this statement? If you did, she was playing you for a fool."
Ironic, because he's the one who played the jury for fools. He knew Martin had motive to lie, he knew she did attempt to deceive the court and then lied about it in front of him. But after blocking the evidence of her deception he treats the defense's attempt to show Korinda Martin is a liar as being a fraud perpetuated by Kirstin Lobato's defense. "What do you expect from a murderer...?" he asks, referring to Kirstin.
"When it comes to Korinda Martin you say that she had so much to gain here...She went to prison for consecutive sentences on two different felonies. And we're giving her such a great deal that it would be suggested that she was going to come in here and lie for us..."
When Kephart says "we're giving her such a great deal" he's being sarcastic, because no prosecutor in their right mind would promise aid in return for testimony. He never promised anything. But he never promised nothing, either.
But there is no doubt Martin was going up for parole shortly after the trial, and because she must serve her two sentences one after another, if she made parole she could start on her second sentence immediately. That would effectively shorten her sentence. And for her, it's all about minimum jail time. That's the reason the forged letter - that no person on the jury ever knew about - was sent to the judge...to help her out with her original sentencing. It is why she wanted the District Attorneys to write a letter to the parole board. But Kephart wants to portray her as a convict with nothing to gain when he knows she'll do anything to gain her freedom as soon as possible.
My problem is that Kephart has seen and heard the proof that was been presented outside of the jury. He succeeded in blocking the evidence, but that's not good enough. He's got to grandstand, and make it out as though the defense's suspicions about Korinda Martin are unfounded arguments delivered to help Kirstin Lobato get away with murder. He knows better...about the arguments, if not the murder.
If he's "just doing his job," then he is choosing the most dishonorable, slimeball path of performing his public duty. He's supposed to be seeking justice, but he uses methods that spit in the face of justice, just so he can win. He doesn't need to badmouth his witness to make his argument or to use her statements against Kirstin Lobato, but it's entirely different to present Martin in a way he knows is flagrantly deceptive. It's immoral, it's unethical, and it's dangerous to innocent people everywhere. And it is a signature trait for the way Kephart ran his entire case.
With Korinda Martin, Kephart even flaunted his success by subtly rubbing the defense's face in the fact that he blocked their evidence. The man disgusts me.
But my personal feelings aside about the way he did his "job"...Korinda Martin's letter and history was impeachment evidence that was never allowed to be presented to the jury.
More to follow.