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8.25.2005

The Last Word II 

With little evidence to go on, and faced with opposing evidence of her innocence, Nevada State prosecutor Kephart had to do what lawyers are best known for: he had to literally convince the jury to buy his theory.

(I wonder if that is some kind of lawyer fantasy. No real evidence to speak of. Just one lawyer, just one argument. Mano y jury-o.)

Anyways, what I am pointing out here in The Final Word is that his argument shows a pattern of deception and manipulation, and a strangely large number of "misstatements".

For example...one thing the prosecutor would have the jury believe is that Kirstin Lobato let Duran Bailey think he would get sex for drugs, but brutally murdered him instead. That was Kephart's argument, the basis for his theory on how Kirstin and Bailey would have come into contact. He needs to undermine her unwavering insistence that she was unexpectedly attacked by an unknown assailant, and he does this by implying that there was nothing unexpected about it (simultaneously pitching the premeditation needed for first degree murder).

In the last argument the jury would hear before going back to deliberate over Kirstin's fate, Kephart said (the following comes from the court transcripts):

“This case involves a puzzle and each one of the people that are involved are a part of that puzzle. What does the defendant say to Dixie happens on the 18th of July after the murder? Tells her a man propositioned me. Where do we hear the same theme? Korinda said the words proposition. It’s interesting that [Kirstin] would use those words when she’s talking about supposedly defending herself from a rape. How many rapists have you heard, when a victim says he propositioned me while he’s raping me.”

He's arguing that Kirstin is lying about the events that she said happened, because a proposition by itself does not amount to an attempted rape. What's more, he's arguing that these are Kirstin's words to others, implying that she had a different story at first. But here he has to slip into deception and factual lies. Oops...I mean, misstatements. Really. And it is only coincidence that the statement above is the one directly after the one I wrote about in my last post. Really.

Anyhow, he points to what Dixie said in court. Did she bring up the word proposition? No, Kephart did. Twice. And he wants her to say that word. He wants it bad.

First time:

Q [Kephart]: Okay. Did he say – do you remember using the word that he propositioned her?
A [Dixie]: I don’t think I said propositioned. I may have said propositioned but I think – when I say proposition, I don’t mean, I don’t mean like a hooker."


And the second time (Q and A are the same as above):

Q: Okay. And the last thing here was that you don’t remember or you think it might be your words when you say that this man, according to the defendant, propositioned her?
A: I don’t think – okay, I may have used the word propositioned but I was not thinking in terms of a man coming up and asking her to do sex for money.
Q: Okay.
A: That’s not what I meant.


He never asks her to read the statement to refresh her memory, as he did a few dozen times with both her and other witnesses. Why not then? Because it would put the context of her words in her mind. Because this is what she said to the police:

"…I got the impression, but this is only my impression, that he may have, ahm, tried to talk to her, proposition her, or do something, and that she tried to just brush him off and get away…”

Obviously, "proposition" is Dixie's choice of phrases, specifically referring to her impression of the events Kirstin was telling her about. But she never says that Kirstin told her any kind of conversation involving a proposition (or similar) took place. That is in direct defiance of what Kephart just said. "What does the defendant say to Dixie happens on the 18th of July after the murder? Tells her a man propositioned me." Umm, no. Kephart just wants that to be the case, wants Kirstin to have said that to Dixie, and needs the jury to believe that is what happened.

Now, onto this rhetorical question-and-answer:

"Where do we hear the same theme? Korinda said the words proposition."

Umm, no actually, she didn't. Not once.

So, he supported his argument by leaning on a word he himself took out of context and pressed upon a witness who denied that it meant what he wanted it to mean, and then further bolstered his argument with a...ahem...misstatement.

Nice going. Really stand up material for a defender of the People of the State of Nevada. A real gosh darned credit to his profession.

This case does involve a puzzle, though. He's right on that, but not about what puzzle. The real mystery is this: how, with our legal justice system, was a young woman convicted of a crime she did not commit? A crime that sentenced her to spending a minimum of 40 years in prison at the age of 19?

I'm really good at puzzles. And this part I'm piecing together at the moment looks exactly like an overzealous and unethical prosecutor.


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