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9.19.2005

WWKB? 

So, let's say you're a lawyer for the State or the defense. You have a part to play in making sure truth and justice and law win out. So, in the course of a trial, you must ask yourself: what kind of evidence do I allow into trial, and what do I fight to keep out? And why?

Well, those questions can have many answers. But if you are interested in neither truth nor justice, you might turn to Kirstin Lobato's trial and ask: What Would Kohn or Kephart Block?

(Kohn was the lead defense counsel for that case, while Kephart was the lead prosecutor.)

During the trial against Lobato for the 2001 murder of Duran Bailey, many things went on away from the eyes and ears of the jury, which is pretty typical for a trial. During such times, both the prosecution and defense often attempted to block evidence from coming into the trial. Since what a lawyer chooses to block - and why - can say a lot about the eventual outcome of a trial (not to mention saying a lot about the lawyer), it certainly bears looking at. So, the following is a list of items that were successfully blocked by the prosecution or the defense.


What Would Kohn Block?
- Out of 46 pictures of Duran Bailey's dead body, Kohn was able to block 7 and one part of an eighth. The reason they were blocked was because they were deemed too repetitive, and therefore could be considered overly prejudicial. Essentially, Kohn was concerned that the photos might adversely horrify the jury, especially considering that Duran Bailey's corpse had enough snapshots to rival a Jessica Alba photo shoot (and Bailey was nowhere near as cute).

- 3 lines from Kirstin Lobato's police statement were redacted (cut out). All three lines were deemed not only irrelevant to the crime, but also potentially damaging to her character. Even though the judge ordered these lines redacted, the subject matter still came up in court. This occurred through witness testimony, but State prosecutor Kephart also played the unaltered version of the taped statement before the jury while displaying an altered transcription for them to read. So the entire point of blocking the subject was rendered moot.

And that's what the defense team blocked (sort of). Now...


What Would Kephart Block?
- Two of four pages from a book recognizing Lobato's creative writing. The reason was unclear, because it was discussed sidebar (quietly to the judge with both attorneys present) without record during the trial.

- Forensic footprint analysis by a defense expert. This would have pointed out that the bloody footprints excluded Kirstin Lobato from committing the crime. That is, they were evidence that someone else committed the crime. Good thing to block, if you're a over-zealous prosecutor out for blood. Reason: the defense did not notify the prosecution of that evidence soon enough.

- Blood spatter forensic analysis. This would have been testimony to point out that it was unlikely a bat was used in the murder, which is the only weapon the prosecution could reasonably say Lobato used for bludgeoning. An 18-year-old girl just over a hundred pounds shattering skulls with her fists just doesn't fly outside of Hollywood, high heels or no. Especially when there were no healing injuries on her hands 12 days later, and no DNA evidence of her at the crime scene. The medical examiner had already pointed out it was unlikely the skull fractures came from a bat, but you certainly wouldn't want someone else to point out more evidence that might undermine that point. Block it! And why? The defense did not notify the prosecution of that evidence soon enough.

- General forensic analysis: an alternate forensic reconstruction of the crime using the available evidence, including additional evidence to consider. If you are trying to say something happened, you certainly don't want the jury hearing that the evidence shows a more likely scenario than yours. So, block it: the defense did not notify the prosecution of that evidence soon enough.

- A pair of witnesses who saw Kirstin Lobato's car 170 miles away from the murder at the most likely time Bailey was being killed. This is the same car that the prosecution had been arguing that Lobato drove away from the crime scene, so he certainly would not want some old couple pointing out that it was hours away from the scene at the time. Block 'em, and guess why? Go on, guess. That's right, the defense did not notify the prosecution of that evidence soon enough.

- And of course, the big one: Evidence that the State's star witness was a perjurer, and had already been willing to lie to the court. Since Kephart needed that witness to specifically connect Kirstin Lobato to the crime scene (since nothing else did), it would certainly be bad for the jury to realize the witness really was a self-serving snake. So block it, arguing that those evidenced lies were about something else, and therefore the witness would not necessarily be lying about her testimony on murder. The blocking of this evidence later became the basis for overturning Kirstin's case (with a retrial starting in November of this year).


So, to sum it up: if you're Kohn you block prejudicial stuff...and you do a poor job of it. If you're Kephart, you block evidence of innocence on technicalities with the help of a bumbling defense.

Let's hear it for truth and justice.


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