I really despise Kephart's final argument for many, many reasons. It is a crucial part of how she was convicted, especially because his argument was the last to be heard by the jury. But he was a master of misstating evidence. Kohn, Kirstin's public defender, called him on it a couple times, but the vast majority of the time it was slick enough to slip by. So slick, in fact, that I doubt I would have caught it except that I am able to read it several times rather than hear it as the jurors did: just once before deliberating.
I'm going to start with this from his closing argument [brackets and quotes by me, for clarification]:
Mr. Kephart: When you listen to [Kirstin Lobato's] statement and you recall that she writes poems, listen to whether or not she's using past tense properly. "[I] didn't think anybody would miss him." "I didn't think I could put him in the dumpster." Why would you have to put him in the dumpster if you drove away while he was sitting there holding himself?
In doing this, Kephart is obviously trying to imply that Kirstin was sitting there thinking about murdering someone well before homicide got there and made it clear they were investigating her for murder...a murder Kirstin had no way of knowing was not the same attack she defended herself from two months prior. Kephart calls attention to her use of grammatical tense because she wrote poetry. I agree with him...tense should be examined here. So let's do that, shall we?
Starting with that dumpster quote first, because it is a simpler point to make: Kephart referred specifically to her statement, so let's go to the only place in that statement involving a dumpster and read what Kirstin said (italics by me):
Q [Officer]: Okay, okay, do you remember any area involving a dumpster at all?
A: [Kirstin]: No, well there was a dumpster not far from where [the attack] happened but I don't remember putting him in it or anything. I don't think there's any way that I could have.
Verbatim, she says "I don't". Kephart tries to bolster his claim by saying she said "I didn't". This shows one of many times Mr. Past Tense blatantly misrepresented the facts, not to mention that it appears like Kirstin didn't have a clue why the dumpster was important in the first place once you put the statement in context. She even seems to assume that they think she put a body in a dumpster before driving away as she said she did. Bailey's body was found in an enclosure behind a dumpster, where he made his home. His body was covered in trash when it was discovered.
But in his closing argument Kephart switched the tenses Kirstin used, falsely claiming she said something she had not in order to make his point.
Now to the first "I didn't". The police specifically asked her questions that lead to the first part of Kephart's statement above:
Q: Was he making any noise at that point?
A: He was, he was crying.
Q: And what did you do next?
A: I left.
Q: Did you move him at all anyplace?
Q: Did you use anything to cover him?
A: No, 'cause I figured nobody would know, you know, nobody was around, nobody cared so I figured no one would care if I just drove off (crying). I didn't think anybody would miss somebody like that.
Snatch that last line out and parade it around by itself, and it sounds bad, yeah? But at that point Kirstin believed that she killed the man who tried to rape her because homicide detectives are there asking her about that attack. The transcript of her answer further implies that she answered their question, cried, then offered an additional statement of thought that they had not requested. Anyhow, let's check that tense, shall we?
"I didn't" certainly could imply that she didn't think someone "would miss someone like that" before the police arrived, and now she thinks differently. But even though Kephart never said as much, perhaps he thought there was a better tense for people to use to clarify their innocence. Maybe he would have thought it more innocent-sounding to say:
"I doesn't think anybody would miss somebody like that."
Well, no, that just sounds off.
"I don't think anybody would miss somebody like that."
Well, unless she doesn't know what it means to have homicide detectives sitting in her house questioning her about a murder, that's not true. At that point, it was obvious that the presence of those officers meant that they thought she had killed someone. To say "I don't think" at that point would require a pretty serious disconnect from reality. In that present tense moment it is obvious that she does think - just as the homicide detectives do think as well - that they are talking about the same attack. Saying "I don't think" in that context makes no sense.
So there you have past, present, and future tenses all accounted for. One is downright incorrect grammar, and sounds like it. The second is absurd given the reality of the situation. "I didn't" is the only tense that does make actual communicative sense in the context of the situation.
So, Kephart, when he's not misstating the tense she used (I love the word "misstating"; it sounds so much better than "lying" but only lawyers and politicians ever really get to use it a lot), he is taking the tense that anybody in the same situation would be likely to use and saying it means something Profoundly Damning. Sure, it could mean what he's saying it meant. But do wait and see...by the time I'm done with this "Last Word" set of posts I truly believe his forked tongue is going to be nailed to the digital board of this weblog. I have no doubt that, if he is the one handling Kirstin's retrial, he will be up to the same tricks. He just cannot effectively fight the evidence of her innocence otherwise.
(For more fun and games from Kephart and his co-counsel, you can read some things I wrote earlier on their closing arguments here and here.)