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9.12.2005

The Last Word (Roundup) 

Prosecutor Bill Kephart argued in his final argument to the jury that Kirstin Lobato murdered Duran Bailey in spite of overwhelming evidence of innocence. Faced with the reality of this, this prosecutor had to bolster a number of his points to make them more believable.

This was the last word to the jury before they went back to deliberate. Kephart, Nevada's lead prosecutor in this case, did the following during this time:

1. He made several substantially harmful misstatements.

2. Some of those misstatements were apparent.

3. He suppressed any awareness that his misstatements were incorrect through oratory manipulation and phrasing.

4. He suppressed any awareness that his misstatements were incorrect by using quotes out of context.

5. He repeatedly claimed facts that were not in evidence.

6. He repeatedly claimed facts which were not true.

7. He offered unsupported arguments after suppressing the forensic evidence which disproved those theories.

8. He offered surprise arguments based on all of the above, especially facts not in evidence or testified to. At this time in argumentation, there was no legal course to disprove those theories, many of which would have been simple to disprove.

9. He suppressed his own evidence.

10. He claimed as fact the opposite of his own suppressed evidence.

Kephart did all of this, as I have detailed below. And this is in the closing argument alone. But argument only goes so far. I am no lawyer, but this was to me a clear case of prosecutorial misconduct. What makes it worse than anything else is that the trial was basically over after that, so Kephart could get away with it, and he knew he could. The result was that a young woman was sentenced to 40 to 100 years in prison at the age of 18, for a crime she could not have committed.

A prosecutor should not be allowed to do these things, especially to this degree. It is a terrible violation of due process and true justice.

"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.

As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor - indeed, he should do so.

But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."


- Berger vs. the United States (emphasis added)


That is the standard set forth by the United States Supreme Court. Kephart is a slap in the face to every prosecutor who struggles to do his or her duty while following the standards of our nation.


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