A man accused of rape and murder deserves a strong defense. Still, yesterday’s closing argument by defense attorney Michael Schwartz on behalf of accused rapist and murderer Isaiah Kalebu was hard to listen to, at times, without feeling repulsed.
Schwartz set out to attack the three pillars of the prosecution’s case against Kalebu—to make jurors reconsider, as Schwartz put it, whether those pillars are made “of salt or stone.” Like any criminal defense attorney, he needed only to ensure that doubt exists. Specifically, a “reasonable doubt” in just one juror’s mind. That alone could change his client’s fate.
The three pillars of the prosecution’s case against Kalebu, as I’ve been writing throughout, are 1) eye-witness testimony, 2) fingerprint and footprint evidence, and 3) DNA evidence. All of these things, prosecutors say, link Kalebu directly to the alleged crimes.
The first pillar Schwartz attacked: The eye-witness testimony from the survivor of the South Park rapes and murder.
And so it was immediately a collision of his words and hers, and a question of what words he would choose as he went about challenging her testimony.
The survivor was there in court as Schwartz did this.
She’d just sat through Kalebu’s testimony, in which Kalebu had added another major element to the case: An admission that he’d been at the scene of the crime that night, inside the South Park home that the survivor shared at the time with Teresa Butz. “I was there,” Kalebu had told the court. “I was told by my God and the God of Abraham, Isaac, and Jacob to attack my enemies. I did so.”
Schwartz made no mention of this.
Instead, he cast the survivor as far too caught up in “hero worship” of Seattle Police Detective Dana Duffey—who, when Kalebu was arrested, called the survivor to say “we got him.” The fact that the survivor’s positive identification of Kalebu came after this phone call, Schwartz said, is significant.
“There’s a reason for that,” he told the court. “The reason is she perceives Detective Duffy to be her savior. That’s her hero.” He asked the jurors, regarding the survivor’s positive identification of Kalebu: “Is she merely repeating what she has been assured of by the person she has come to rely on the most?”
It came off as patronizing, intentionally infantilizing, and explosive. He was directly questioning the honesty and integrity of a woman who, in six hours of testimony about her own rape, and the rape and murder of her partner, had repeatedly admitted when she was unsure of certain details or unable to answer certain questions. I did not sense that the jury was impressed.
It continued.
Why, Schwartz asked, wasn’t there more blood in the room where Kalebu allegedly took the women when he went to grab another knife before the bulk of the stabbing and cutting began?
The attacker had cut Teresa Butz before he took them into this room, Schwartz reminded the jury. Moreover, Schwartz said, Teresa Butz had told the attacker she was on her period. Schwartz paused here. The implication seemed to be that even if the early cutting suffered by Teresa Butz had been relatively minor, and even if the women had been huddling during the earlier part of the attacks on sheets that photographs show soaked up a lot of blood, a naked woman on her period would still leave plenty of additional blood in any room to which she was subsequently taken.
Which was as odd as it was off-putting. Does Schwartz—who has a female co-counsel to assist him—really have such a poor understanding of menstruation? And did he not notice the number of female jurors?
Then, Schwartz moved to another argument: If Kalebu had in fact committed attempted murder, he couldn’t possibly have committed it with premeditation, as the prosecutors allege. Because, Schwartz said: “The best evidence of a lack of premeditation… is sitting right there in the second row.”
He was referring to the survivor. He was suggesting that the fact that she is still alive means Kalebu can’t have planned to kill her. Which makes little sense. A person can premeditate, and still fail at, murder. It seemed far too poorly reasoned a point to justify a tactic of essentially using a rape survivor’s very survival, in public, against her.
Schwartz also pointed out that some of the stabbing and slashing of the survivor, and the fatal stabbing and slashing of Teresa Butz, occurred after the two women began to fight back. Trying to anticipate and counter the obvious conclusion—that he was blaming the victims for bringing on more violence by trying to defend themselves—Schwartz said: “These are undoubtedly two very very brave women. That’s not the point I am making here.” But it was hard to see how that wasn’t exactly the point he was making.
What about the DNA evidence, the footprint evidence, and the fingerprint evidence that has been used by prosecutors to link to the crimes to Kalebu?
Essentially, according to Schwartz, any linkages that were made involve junk science that has been generated in order to fit a preexisting conclusion, this preexisting conclusion being that Kalebu is the guy. It may sound like an ineffective argument when I summarize it in a sentence, but Schwartz is very good at what he does. In the courtroom, as he took his time belittling the credentials of the prosecution’s forensic experts and name-checking various studies and cases that he said proved his doubts about DNA, it all sounded… well, it all sounded reasonable enough to possibly plant a doubt in some juror’s mind that could grow into something this juror might later come to call “reasonable doubt.”
Now.
Say what you will about King County Deputy Prosecutor James Konat—and there is a lot to say about him, including, according to the Washington State Supreme Court, that he once used “racist” arguments in pursuit of a murder conviction. But Konat is also the kind of ready-to-rumble prosecutor you want swinging back at a closing statement like the one Schwartz offered yesterday.
I’ve written a lot of words already, so I won’t go too deeply into Konat’s rebuttal. Suffice to say that if Schwartz closed off-puttingly at times, and with a buckshot approach to the sowing of doubt, Konat closed in a different manner. From where I sat, he closed somewhat endearingly (as when he rolled his eyes at how often his co-counsel, Brian McDonald, has to correct him), sometimes angrily (as when he bristled at Schwartz’s apparent blaming of the attacked women), and factually (with a heavy focus on the number of zeroes in a quintillion—a number of zeroes that’s necessary to remember in order to understand the odds that DNA evidence linking Kalebu to the crimes is in error).
Konat’s best closing argument, though, came from Kalebu’s own mouth.
Konat told the jurors they don’t necessarily need to take the prosecution’s word for the fact that Kalebu was there that night.
Remember, Konat said: Kalebu himself has admitted he was there.
It’s almost as if Schwartz, subconsciously or otherwise, wants to see his client found guilty by making the most outrageous and unbelievable arguments in his defense.
Maybe those are the only ones available to him?
he’s got to make a case for his client. whatever case he makes, it won’t be pretty, because Kalebu is transparetnly guilty, and the only question is whether he’s fucking insane. i don’t envy him this task.
sowing of doubt. ‘sewing’ is a whole different context.
I, too, feel some amount of sympathy for the defense lawyer. He’s been handed a pile of shit, and he’s got to try to argue that it doesn’t smell. It can’t be done, of course.
Even if he’s got a tough job, it would have been really nice if he could’ve forgone the victim blaming. It sucks that people still consider that a viable defense.
@4: Thanks, fixed.
@ 6, victim blaming would be “She brought it on herself.” The defense attorney was attacking her credibility. No, it still stinks as you say, but imagine the shitstorm if he had said that these women invited their fates.
Even monsters deserve a vigorous defense. In any reasonable situation, this would have gone to a plea agreement well before trial. But Kalebu is crazy. Not necessarily “doesn’t know what’s going on around him” crazy…but crazy enough to think what he did was justified, and he shouldn’t have to plead guilty.
Time to self-correct. I keep forgetting that this is about the murder and attempted murder. I keep thinking of the entire thing as a single crime. So I retract what I said @ 8 – yes, the prosecutor IS blaming the victims.
@10 – Wait, prosecutor? You mean defense, right?
I’m still not seeing the victim blaming. “You trusted the officer who you’ve come to rely on to have arrested the right man,” “Some weird shit about blood,” “He obviously wasn’t there with intent to kill, just rape,” and “generic attempts to discredit expert testimony.”
Only the first has anything to do with the victim, and I don’t really see blame there. It’s a recognized fact that eyewitness testimony is unreliable at best…and frankly he couldn’t wedge that argument in with a crowbar anyway, since his client openly admitted that he was the guy there.
@11
@ 11, yes, defense.
Time to stop slogging when I haven’t had my coffee…
The only thing I ask is that when he is convicted he goes to genpop. I don’t want the state to be paying for a special room, with a special guard, at 3 times the cost to the taxpayer. Genpop, and he won’t make it a year.
@ 11, I ordinarily would agree about eyewitness testimony being unreliable, but this was an extraordinary case as far as that goes. Most instances of eyewitness events are unreliable because they’re brief – an armed robbery or mugging takes a minute. I think most rapes take less than five minutes. The victims and witnesses in these cases are pumped full of adrenaline and trauma. It makes detailed observation kind of hard.
But the victim here spent an hour and a half to two hours with this man. And as tortured as she was the entire time, I believe she was much more likely to be able to observe and remember details about her attacker.
Hell, just from viewing the court appearance videos Slog posted in 2009, I know this guy had extremely memorable mannerisms and his voice – his way of speaking – are unforgettable. Imagine spending two hours in the same room with him as your captor.
I think this is one instance where the chestnut about the unreliability of eyewitness testimony doesn’t apply.
What Schwartz was trying to say in the part quoted by @12 is that if the crime was premeditated, you would have seen evidence that Kalebu had tried to prevent them from escaping. He argued, for instance, that you would have seen knife marks in Theresa Butz’s back. I’m not sure that argument actually holds any water when it comes to defending against premeditation, but even if it did, he didn’t word it very artfully.
Also, if this case had rested solely on the surviving victim’s identification, it would have been reasonable to attack the identification (although I agree that he didn’t do that artfully, either). An expert on eyewitness ID could have offered several reasons to doubt the ID. But since that wasn’t the crux of the prosecutor’s case, I think it was silly to focus on it.
And I’m mystified that defense never acknowledged his client’s testimony.
@12 – Thank you! Somehow my eyes glossed over that three times.
@16 – My guess is, Schwartz spent uncountable hours trying to think of any possible way to spin that in his closing, came up with nothing, and decided on “LalalalalalaIcan’thearyou”
After a stomach churning read of the Defense’s arguments, I actually WOULD like to read a detailed take on the Prosecution’s rebuttal. But I understand if your typing fingers are tired, Eli.
@18 Me too. And Eli, you rock.
Is this your first murder trial, Eli?
Any lawyer scared to look like an asshole would have no place working a hopeless indigent defense of a serious crime like this one.
And wisepunk @14, if I take your meaning to be that the state should see to it other prisoners kill him, I have to disagree. If the sentence is life in prison, he deserves all the duty of care the state provides every prisoner. I’d assume that would be the High Crime section at Walla Walla – if other prisoners threaten his life I’d expect the state to preserve his safety any way they can, with cost no consideration, same as for any “genpop” prisoner serving out a War on Drugs conviction. The state mustn’t be allowed to intentionally expose any prisoner to grave bodily harm – talk about a slippery fucking slope.
Only if the juror is a fucking moron. Unfortunately, it only takes one to get that monster a new trial.
@15 – And that’s the conclusion a reasonable juror is likely to come to, but the statistical unreliability of eyewitnesses is still a valid point to be made, and the defense has very few options here. However long it took, however distinctive and unmistakable the defendant appears, there’s still a possibility that the survivor misidentified him. I don’t believe she did, but it’s not my job to defend the guy.
The man was just doing his job. You have to defend your client.
I don’t get the “blaming” thing at all. He was offering a reason why it wasn’t premeditated (he didn’t start stabbing more until they fought back). I didn’t get that meant he was blaming them at all. I have heard that defense used before; “I didn’t mean to kill her; when she started screaming I just wanted to shut her up.” It was a reason, an “excuse,” not blame. And sometimes it works. It might work here; nothing I have read on Slog convinces me 100% that murder was premeditated. Sometimes I even wonder if the attack was, or if it was just a random case of taking advantage of an open window. That’s just reading Slog mind you, there would cert be more to take into acct if I’d heard all the testimony. If they don’t find premeditation, he still gets locked up on the lesser charges. I’m most curious what the jury will decide about this.
In another case, I would think a cop calling and saying “We got him” before the victim comes in to identify a criminal is significant. And I agree w/@23 on eyewitness ID. But I have no doubt Kalebu is the man.
@18 & @19, I agree too, Eli. Your coverage of the defense was excellent. I’d love to read your take on the prosecution, too. Overall, this has been really, really well done on your part. I can’t imagine a newspaper doing anything even remotely close.
Sorry Gus. I’m not saying the state should put him to a dangerous situation, I just want him to get no special treatment. I don’t want the taxpayers shelling out big bucks so he gets special treatment. Put him in genpop. Then let him live by the same rules my dad put in front of me: Don’t let your aligator mouth get your hummingbird ass in trouble.
@24 – I’m not saying that it’s not an argument against pre-meditation. I understand “Well, he clearly wasn’t planning on killing them because he didn’t really get stabby until they started fighting back.” While yes, Schwartz was trying to prove a point about how it was not a pre-meditated murder, he’s relying on the assumption that maybe if they hadn’t tried to defend themselves, Teresa Butz would have made it. Victim blaming is implicit in such an argument.
You know what word I’m growing to hate? Blame.
X preceded Y, and may have been a contributing factor in Y’s occurrence. This is frequently an absolute fact, but to voice that fact is defensively considered assigning blame. Why does causality have to come with a shame element? I think we can all agree that “blaming the victim” is bad when done to shift responsibility. But it’s entirely possible for Kalebu to be wholly “responsible” for the terrible things that happened, while the actions of the victims may have influenced exactly which bad things they were.
I remember watching some shitty True Crime show involving a serial rapist. He’d raped and killed some number of women, say 5. Each was killed after she resisted the rapist’s fantasies. A 6th woman was taken, played along, and escaped/was released alive. The narrator seemed to be suggesting that playing along was the sensible action to take. It occurred to me, though, that the “right” action depends on whether you’re being attacked by a serial rapist willing to kill if he doesn’t get what he wants, or a serial killer who just happens to throw in some rape as warm-up. It’s impossible to know which kind of attacker you have, and an impossible choice to be faced with.
These women are not to blame for being put in the situation, and they’re not to blame if resisting led to Kalebu killing Teresa Butz. Kalebu is 100% to blame regardless. But the question of premeditation is one that deserves to be asked, because our society differentiates between different kinds of murder.
I totes agree, evilvolus, but when differentiating between different kinds of murder, society’s cultural attitudes come into play alongside the factual evidence of the case. In fact, a lot of lawyering comes down to putting the factual evidence into a cultural framework to play to a jury’s emotions and ingrained biases in order to sway them. Take, for instance, the case in Australia of a man acquitted of rape solely on the basis that the victim was wearing skinny jeans, so supposedly she had to have voluntarily removed them. When it came down to “he-said-she-said,” the defense won by victim blaming. It’s an easy card to play when a woman is assaulted. The “they-asked-for-it” and “false rape accusation” arguments are often used as a means to mitigate and delegitimize actual rape and assault occurrences.
In this case, yes, I understand that Schwartz needs to establish that it was not pre-meditated. And as I said, I understand the argument – Kalebu didn’t become intensely murderous until after they started fighting back. But as Eli reported it, Schwartz apparently framed it in a way that plays the victim-blaming card.
Sorry, accidentally posted instead of editing. To finish:
Eli has repeatedly said that the defense’s closing arguments were off-putting and meant to sow doubt – any kind of doubt – in the jury’s minds about any of the charges. And it is a cheap, easy play to frame a lack of pre-meditation in the terms of “he only intensified his assault because they started resisting.” That framework subtly shifts the responsibility for the act towards (but not upon) the victims. And because it’s such an easy bias to play to, it makes it more difficult for the jury to question pre-meditation. Let’s not forget, Kalebu was already cutting them before they started resisting. So if it wasn’t pre-meditated, as the defense would like the jury to believe, then he was just cutting them for fun and it was their resistance that made him murderous.
Like I said, I get it, but it’s a shame that Schwartz used victim blaming to frame that part of the defense’s argument. It’s cheap.