(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.
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.
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.
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.)
People tend to think that sensitivity equates to weakness. If so, then callousness is the same as strength. I don’t think either one is true. But it is not a bad thing for a person to be afraid of harming another person. I have a good friend who is quick to apologize for any perceived slight. She feels guilty if she thinks she’s hurt someone’s feelings, whether they had it coming to them or not. I can barely imagine how much of a wreck she’d be if she ever actually had to harm someone physically.
Is that such a bad thing? That she would somehow feel like partaking in violence is an affront to what makes her human?
I, on the other hand, seemed to attract bullies when I was young. I think I made an easy target, being scrawny, quiet, and pretty much prone to keeping to myself. But I came from a household where beatings were commonplace, and I was not so willing to accept it in the world outside or in school. Even so, the first three times I ever got into a fight, I cried like hell afterwards. Not because I was hurt – two out of the three I hadn’t been – but because I had been a part of a violent confrontation, and had hurt someone else. I had, in fact, brought upon another human being the very pain that I abhorred being done to me at home. But here’s something to note: I never once did anything to start those fights, and I still cried about what I had done.
Later in life, I did not cry. As my family and home life fell to pieces and I turned to life on the street, violence became a common part of my reality. After a time, I grew jaded by violence. Then I became good at it. Eventually, I even started to like it.
There are long years between then and now, and I have changed a great deal. But I do not deny that that is who I once was. But that is not the attitude that I think our children…our young men and young women…should adopt when it comes to dealing with violence.
What is better, truly? That a person would cry because they have done harm to another person, even if that person deserves it? Or that they learn to revel in their talent for streamlining hate into physical cruelty?
Much has been made of Kirstin Lobato crying about the attack on her, which she has always and consistently maintained was an attempted sexual assault that she fended off with a knife in May of 2001. The prosecutors who led the charge to her conviction say she killed Duran Bailey, who died two months after the attack on Kirstin in a brutal homicide that evidence shows she could not have committed. When the homicide detectives showed up at her home, Kirstin cried a great deal, and said things that could be construed as an admission of guilt, like when she told her parents “I told you I did something bad.”
She cried because of her conscience, that much has never been in doubt. But she was crying about her own actions of self-defense against a man that could not have been the murder victim, Duran Bailey. She cried about cutting a man with a knife. She felt like she was bad because she had taken violent action in a way that nothing in her history had prepared her for. This was not a young woman with a past full of violent encounters that she herself perpetuated (that most certainly would have been brought up in court). As far as I can tell from all the testimony and statements and so on, this was the first altercation of her young life where she fought back against abuse, and that most assuredly made it extremely intense for her. I’ll say it again: violence is traumatic.
And Kirstin has been the victim of abuse before. Abuse will make you very aware of pain and how it works. It ensures that you know how it feels when you cause pain to others. Exactly how it feels. For many abuse victims, the logic behind it all does not change just because of the presence of self-defense. Justifications of an action become meaningless compared to the pain, especially because most abusers provide justifications for their actions even as they abuse. So, what really is “justification” to a victim of abuse? How well can they understand the meaning of a term that seems like it can be tailored to fit any action at all? Victims are often left with only knowing that the infliction of pain is wrong. So, yes, Kirstin cried about harming someone. She thought of what she had done as bad. Harming her was bad. Harming someone is bad. Heck, when homicide showed up, she thought she had killed the man, and it does not get much worse than that.
Crying was not an admission of guilt about Bailey. Thinking of violence as “something awful” is not an admission of guilt either. Especially to a young woman who had suffered before at the hands of abusers. In fact, crying is something that I think shows what everyone who knows Kirstin seems to say about her: that whatever her problems may be, she is a good girl with a good heart.
Dixie T. is probably not the Lobato family's favorite person. She was, after all, the catalyst for the events which led to the police knocking on Kirstin Lobato's door, and her meandering (absent-minded?) comments gave the prosecution a few things to create conjectures from. Which they did. A lot. With everyone. You kind have to when no forensic evidence exists to back up your case, and you've only got a self-serving inmate as a secondhand witness.
But Dixie became a catalyst after Kirstin told her about defending herself from an attacker in May of 2001. Their one conversation about that attack opened the door to Kirstin becoming the only murder suspect for a killing committed two months later in July. Yet Dixie was far more supportive of Kirstin's story in her statement to police than it appeared in court. If there was a Greatest Hits album for the statements the defense never asked about in court, I would have to submit this line from Dixie:
"I do want to make this very clear, Blaze did not think that she ever killed anybody. I know that. I don't think she could have ever done anything like that, and I, I feel confident that she did not think that he was to the point that he wasn't going to live."
And later, when asked if she was surprised that the police contacted her, her response was:
"I was surprised that the man died."
Go here for a list of the injuries that killed Duran Bailey, and see if you can imagine somehow not realizing that you killed him. You would think that the defense might try to find out what gave Dixie the impression that Kirstin's attacker was still alive. At least once.
Additionally, the two women's statements (Dixie’s and Kirstin's) often mirror one another. Considering the three following statements:
"She said he knocked her down."
"She never mentioned hitting him at any time."
"She said she saw him stumbling and getting up and she said stumbling and getting up."
There are many more examples, but this matches what Kirstin Lobato told the police: that a man knocked her down and attempted to rape her, and she slashed at his groin, causing him to back off. She then ran to her car and drove away, but told the police that she saw him still alive, crying on the ground when she left. The police asked her if she hit him with anything, and she said she did not think so.
Maybe the defense ignored those three statements above because some of them came up very briefly when the prosecutor was questioning Dixie. But there is far more than those three statements. After Kirstin was attacked, she took her car to her ex-boyfriend's - he wasn't home - and left it there. She said it was vandalized while she was there, and told Dixie the same thing. Dixie told the police:
"...she had left her car there, and when she went back over there to get her car and her clothes, the rest of her clothes, he had spread feces and urinated all over the interior of her car and had done some, all kinds of really nasty things, and she said that she had to have the whole car really cleaned out."
Jeremy also testified to seeing her car in his driveway for no apparent reason back in May, after they had broken up. He denied vandalizing it. But compare Dixie's statement to what Kirstin told the police about what she found when she returned to get her car:
"He broke my sunroof, my headlight, um, he pissed, shit and puked on the inside of my car...."
The prosecution said nope, that's just an made up excuse for why she cleaned the blood out of her car, so well that forensics found no blood anywhere in the car. Why then, did the forensic expert who examined the car for evidence find vomit under the passenger seat? Good enough cleaning job for blood, but not good enough for vomit? Enough that the forensic expert testified that she knew what it was the moment she saw it?
Actually, the question is why did this, too, skate past the defense? Was it too nasty to bring up? The totality of Dixie's court testimony to this effect came when the prosecution asked her about it, and she stated:
"...after what an ex boyfriend had done to her car... I think we were talking about what had happened after her boyfriend had done what he had done to the car."
Considering that the prosecution was going to say that Kirstin or her family were actually cleaning the car of blood, you'd think that the defense would at least attempt to note that Dixie is one of four people who lent credibility to the sequence of events Kirstin maintained (including the forensic expert who did not even know her). But, no.
Throughout the case, the prosecution offered up explanation after explanation as to why facts that did not fit their case were part of a lie, thought up by Kirstin and possibly her family to cover up murder. But they had to try hard to make any testimony appear like it contradicted her story. For the most part, they were left with only the act of implying something might contradict something else. Thank goodness they had a public defender that would let them do just that, as he engaged in largely pointless and unproductive lines of questioning. Her defense counsel certainly seemed unable to turn supporting statements from multiple people into useful court testimony.