The Smoking Gun 

(Or, "The Curious Tale of Sherlock Holmes' Retarded Little Brother")
Everyone has their own view of what constitutes a smoking gun, where something serves as indisputable evidence or proof of what has or has not happened. Usually, I'd expect that detectives will recognize one when they see one. So much for my expectations.

A little background: the body of Duran Bailey was found behind a dumpster on July 8th, 2001. He was slaughtered, and I assure you that word can be used without any melodrama. His death was simply a brutal and very bloody one. Whoever killed him covered him with trash, and among that trash a rather large piece of cardboard was found over his face and torso. This was attested to by several investigators, including:

The first officer on the scene, Officer Testa
The forensic investigator at the scene, Lousie Renhard
A homicide detective in charge of the case, Detective Thowsen

There was also this bloody shoeprint track exiting the crime scene (yellow annotations by me).

From Officer Testa's testimony:

Q: What is that?

A: Looks like a foot mark or shoe print from somebody had stepped in blood and had been walking back out.

And later...

Q …the footprint was there when you got there, right?

A: Yes, sir.

The officer detailed the lengths he went to in order to protect the crime scene. From start to finish, he reported all the things he did to avoid contamination, and clearly played it safe and responsibly.

The shoeprint was compared to the man who found Bailey's body while dumpster diving, Richard Shott. Forensic analysis showed that he did not make that print. Without any other apparent suspect, it is likely that Bailey's murderer did.

This likelihood is further shown by the aforementioned cardboard found over the victim's body. On that piece of cardboard, two more bloody shoe prints were found. That would indicate that the murderer made those prints walking around, then threw the cardboard on Bailey's body with the rest of the trash.

Forensics determined that these prints were made from a size 10 men's workboot. Surely, this was a clue worth noticing by Detective Thowsen or his partner. Ah, but no...

Kirstin Lobato became the detectives' only suspect after the police learned she had been talking about defending herself from an attack. Her story bore only a few similarities to Bailey's death, but it was enough to bring the detectives to her house on June 20th, 2001.

12 days after he was at the murder scene, Thowsen took a statement from Kirstin Lobato without ever mentioning the date of the murder. Had they even asked, they would have found out that she was referring to an incident in May of that year, over a month before Bailey's death. But Detective Thowsen and his partner then decided that she was admitting to the crime and arrested her, despite the clues that should have made him aware that they were talking about two different occurences: a different location, a different time frame, and a description of events that directly conflict with any reconstruction of the crime.

But heck, why not add one more? From that statement:

Q: (Thowsen) And what kind of shoes did you have on?
A: (Lobato) I had on black high heels.

Even if Thowsen did not know the exact size of either shoe (the high heels were size 7 1/2, women's), there is a definite difference between a workman's boot and a high-heeled shoe. I mean, look at the picture above. Can those really be mistaken for high heels?

Seriously. Somebody needs to go back to detective school.


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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