Q (Officer) And how soon was it that you talked to her before you were attacked?
A (Kirstin) It was afterwards already.
Q After you had been attacked?
A Yeah, this has already been over a month ago.
In this conversation, Kirstin was discussing a conversation she had with someone else who might have been a victim of the same guy who attacked her. Kirstin even described the woman to the police.
“Yeah, she was another blonde girl that had a scar on her lip and I don’t know her name but she was about 25.”
Now the timeline is easy to see here. Kirstin was saying she had been attacked. Then she talked to another girl who was attacked. Maybe by the same guy, maybe not. Maybe Kirstin hurt him bad enough to stop him, maybe not. She doesn’t know. But saying "over a month ago" clearly illustrates that both her attack and the conversation happened before July 8th. Even if you’re playing fast and loose with time frames, the passage of 12 days does not typically equal the phrase “over a month ago.”
Enter Diann Parker. This woman was raped by Duran Bailey a week before his murder, with witnesses. Bailey lived in the dumpster enclosure where he died, very near to her apartment. The day his body was found she showed up at the crime scene trying to determine if it was Bailey who was dead. Yet the police never followed up with her as a suspect after they arrested Kirstin Lobato.
Fast forward to the trial. Kephart sought to undermine the fact that Kirstin inadvertently gave the police exclusionary information by telling them that the attack on her happened over a month prior. In order to do this, Kephart brought the focus onto the person Kirstin spoke of when she talked to police…the woman Kirstin described as a blonde girl around age 25 who had a scar on her lip. Kephart says:
"Let me back up a little about Diann Parker again. What did we hear from the defendant? What did the defendant tell you in her statement to the police? She told you, it's on the last page of her statement, they were questioning her about -- she came back on and said I know about another woman that had been raped. And her statement was given on the 20th of July, 2001, the defendant's statement. And they asked her about -- and do you remember my cross examination about this? I asked her, is she telling us that a man that she cut his penis was out raping again? She said she didn't know. Then the defense came up and said, well, you don't know when that happened and when that statement was made or what -- I mean, when that rape happened. When you read her statement, when you listen to it she says, and they:
'Q And how soon was it that you talked to her before you were attacked?
A It was afterwards already.
Q After you had been attacked?
A Yeah, this had already been over a month ago.'
Ladies and gentlemen, I submit to you that Diann Parker's rape that happened on the 1st of June, or July, was approximately a month from the time when the defendant spoke to the cops. It was over a month ago."
There's a nice change of “has” to “had” there in that last line from Mr. Bill “Past Tense” Kephart. It helped him shift the timeline slightly towards what he wants it to be. That is...talking to this other woman happened over a month ago, but not necessarily the attack on Kirstin. Either way, he is clearly implying that Parker is the woman Kirstin talked to.
According to Kephart, this is the 25-year-old blonde girl with a scar on her lip.
Say hello to Ms. Parker. By the way, that bruise – not scar – on her lip, was given to her by the murder victim, Duran Bailey, shortly before that picture was taken. I can't tell if she is blonde or not from this photo (I don't suppose you saw her, Michelle?), but I think it speaks for itself as to whether or not Parker might be the same woman Kirstin described.[Update (with many thanks to Michelle): "Dian Parker would be 46 years old if she were still alive, so that makes her 42 at the time of the murder. She had dark brown hair and dark brown eyes."]
Now, the idea that Parker might be the woman Kirstin was talking about was never once brought up during trial. Kephart makes that connection right that very moment for the jury. There was no precedence and no warning. The jury never got to learn how Kirstin described the girl to the police, or if Kirstin and Parker knew each other. The jury only knew that she had spoken of another woman when talking about her attack being “over a month ago.”
Out of 28 witnesses (excluding Kirstin herself), those that knew Kirstin or had met her were asked to identify her in the very first handful of questions. This was done without fail. But never once was it mentioned by defense or prosecution that Parker might know Kirstin Lobato. The subject was never even approached. She was never asked if she knew the defendant like everyone else who was expected to know Kirstin. In her statement, Kirstin also noted that the woman she spoke to was at Steve Pyszkowski's house. Pyszkowski also testified, but they never asked him if he knew Parker, nor did they ask Parker if she'd ever been to Steve's house.
So, here Kephart is, giving the final closing argument. And what does he do? He makes shit up that was never even alluded to in the trial. And he cannot be proven wrong at this point, which is easy to do if you just go to the statement or call up Parker as a rebuttal witness and ask her "Hey, do you know the defendant? Or maybe this Steve Pyszkowski guy?" But they don't, and they can't, because this is the closing rebuttal argument...the very last thing the jury will hear on Kirstin's case.
Ludicrously, after that statement above from Kephart, defense counsel Kohn offers this objection:
“Your Honor, that misstates the evidence. Object. It was the 20th that she talked to him.”
So let me get this straight. The prosecution dropped a huge bag of B.S. out of the blue, and the defense objected to the way Kephart used the date of Kirstin's police statement?
The sheer ineffectiveness of the defense, coupled with the 'malice aforethought' of the prosecution, is so bad that…I don’t even know what to call it anymore.
While arguing that Kirstin stabbed Bailey’s scrotum while he was standing with his pants down, Kephart says:
“And look at those brown clothes that he’s wearing, those pants. They’re down around his knees when they find him. That means he bled down. His blood dropped down. Didn’t drop back here (indicating); didn’t get back here while he’s laying in blood. It dropped down and hit the top of his pants. There’s no cut in his crotch area.”
And he concludes:
“That man was ready for some kind of sex act.”
Okay, first of all, the fact that his pants were down does not mean he bled down. It means his pants were down. Never mind that this is the logical place for his pants to end up considering that his member had been cut off and his anus stabbed. One would suppose Kephart has more evidence that says Bailey was standing and the blood dripped down. I'll get to that in a moment.
Kephart also notes that there is no cut in his crotch area and argues that means he was ready to get it on, so to speak. Is he trying to ask: why not just cut and stab through Bailey's pants? It is difficult to amputate someone like that if their pants are on. Point is, you can’t say one way or another if he was getting ready for sex on or not just because his pants are down. So, in that sense it is a legitimate argument. But Kephart props that argument up on the idea that Bailey is standing, ready to receive the fruits of his proposition, when he was stabbed without warning. Evidenced, Kephart says, by blood falling down from that wound.
So, let us look to the actual evidence of bleeding. Consider the analysis of the expert forensic scientist Schiro, who has an impressive resume with plenty of expert credentials. At the time, he had testified over a 100 times for prosecutors. In this case, he was testifying for the defense. Kirstin’s case was only the fourth time in his entire career that he had been a defense witness.
Now, note that Kephart claimed that Bailey bled down. “That means he bled down. His blood dropped down…It dropped down and hit the top of his pants,” he said. Then read Schiro’s analysis:
“The photographs of his pants also do not indicate the presence of any vertically dripped blood. This indicates that he did not receive any bleeding injuries while in a standing position.”
No vertically dripped blood. It did not drip down. I don’t know what which photo(s) of the extremely bloody crime scene Kephart was pointing to when he was indicating, but I’ll take the word of an expert forensic scientist – especially one who has served most of his career in the interest of prosecutions – over that of a district attorney who has already misstated evidence multiple times in the handful of minutes that he’s been arguing.
But who got to hear Schiro’s analysis? Certainly not the jury. Kephart got Schiro’s testimony on this blocked, based on Special Public Defender Kohn’s extreme lateness in submitting Schiro as a witness. But they did not outright block Schiro himself. The court went over his findings with both the prosecution and defense while the jury was not present, and blood spatter is one of the things Kephart argued to keep out.
Additionally, none of the expert forensic witnesses on the prosecution’s side ever made the claim that blood dripped down. Kephart never asked them about it, either (which would have been prudent if he was going to argue it so vehemently later). His claim, essentially, comes out of nowhere at all, and he has already succeeded in blocking a credible expert from saying otherwise. This is the last word, and there's no one left to counter him.
Just a few minutes before this, during the defense team’s closing argument, Kephart had objected to some of the points Kohn brought up on the grounds that no one had said anything during the trial about them. Given that, you would think that Kephart would be a little more careful about spouting out things that the testimony won’t back up. You’d think he would at least avoid offering such things three times in quick succession. But, of course, he was not serving the cause of justice. His only objective was victory.