Assistant Attorney General Barbara Whaley didn’t have a strong case. Tom Griffiths described the prosecution’s theory of the crime as nothing more than guesses and speculation. In order to win the case, Barbara Whaley made the conscious decision to mislead, mischaracterize evidence, and provide false testimony. It was false testimony about cell phone location data that led to the indictment. She, along with Detective Scott Smith, attempted to mislead jurors by intentionally showing gaps in Kit’s security camera footage where gaps did not exist. See the post A Detective’s Sleight of Hand.
The day before her closing argument, Judge John Atkins threw a wrench into things by not allowing the prosecution to argue complicity. See the post Complicity. It meant that Barbara Whaley couldn’t say that some unknown accomplice had helped Kit load bodies and move cars and transport the victim’s phone. She was going to have to come up with an alternative explanation. Her answer was to say that all of these unexplainable things were all due to Kit’s military training. These crimes were committed with military precision she would say on more than one occasion.
Barbara Whaley’s closing argument was one improbable conclusion after another. In her version of the crime, Kit was a highly trained military killer who planned everything out and considered every contingency, even casing out a location of where to burn a vehicle that wouldn’t even figure into the plans until four days later, as if one of Kit’s contingencies was what to do if he had to kill two more people and then get rid of their bodies. As for explaining how Pam’s phone and Kit’s phone were in different locations at the same time, she had an answer for that as well. Kit knew all about cell phone towers and how to use a cell phone. He worked for GTE Wireless. He probably also learned about cell phone data in the army. She didn’t go much deeper than that.
A prosecutor is allowed to make wild, unsubstantiated claims as long as there is a chance, regardless of how small a chance, that what they are saying could be true. They’re not allowed to say things that are not true or are contradicted by the evidence. In the video below, I have selected five clips where Barbara Whaley committed what I believe to be prosecutorial misconduct.
In the first clip, Barbara Whaley implies that Kit had possession of the G2 RIP bullets that killed Calvin Phillips. This is important because that particular bullet was not a typical .45 caliber round. This bullet was designed to kill. If the police had found that Kit had G2 Research RIP ammunition in his possession, it would have been extremely detrimental to his case. For the record, Kit did not have this type of ammunition. You can listen for yourself as to how Barbara Whaley talked about this piece of nonexistent evidence
Whaley stated that the guns that killed the three victims were found in the defendant’s home. That is categorically false. She tried to clean it up seconds later by saying that it could have been any of Kit’s guns, but why make that kind of statement to begin with? Saying that it could have been this gun or that gun isn’t proof beyond a reasonable doubt. There are literally hundreds of thousands of 22 caliber guns that had the same six right twist found on the collected evidence and Kit’s three 22 caliber guns.
In the third clip, Barbara Whaley tried to explain away the differences between the test bullets fired from Kit’s Glock 45 and the bullets recovered from Calvin Phillips. She had tried her best in direct examination and in cross-examination of the two ballistics experts to get them to say that the barrel of Kit’s Glock could have been altered. They both agreed that it was possible. They also both said that they examined the barrel of the gun and had not found signs of alteration. But that didn’t stop Barbara Whaley from concluding that Kit must have altered the barrel. It was all part of his military training.
The fourth clip concerns hair analysis. Four hairs were recovered from Ed Dansereau’s car that were found to be microscopically similar to Kit’s hair. Those four hairs were sent off for DNA testing. Only one hair could be tested for DNA. The result of the DNA test was that it was Ed Dansereau’s hair. It excluded Kit. But that’s not how Barbara Whaley described it.
lastly, there is Barbara Whaley’s discussion of the dog tag evidence. She had a bizarre theory as to why the dog tag was on a string. It was because a chain conducted heat and maybe that’s why Kit had put it on a string. Then she made the claim that Kit had never said that it wasn’t his dog tag. Let’s just say that he did deny that it was his dog tag. Watch Kit’s reaction when she makes this false claim.
