ATTORNEY Brien Sers Nicholas Sr., on behalf of his client Kenneth Thomas Blas Kaipat, has renewed a motion for a judgment of acquittal or, in the alternative, a motion for a new trial.
Jurors convicted Kaipat of rape and other charges on Aug. 11, 2023.
In his motion, Nicholas said the prosecution “never presented any evidence, whether ‘direct’ or ‘circumstantial,’ beyond any doubt that (1) the sexual offenses in this case were committed on June 2nd, 2019, and (2) the defendant was the person who committed all criminal offense he [defendant] was being charged with in this case.”
Nicholas also said that because the judge questioned the paternity of the defense counsel’s son, who was part of the jury pool during the initial stage of the jury selection, the jury pool was prejudiced against his client.
Kaipat, 19, was found guilty of three counts of sexual assault in the first degree, two counts of sexual assault in the second degree, aggravated assault and battery, assault with a dangerous weapon, strangulation, and burglary.
In a judgment order issued on Aug. 14, 2023, Superior Court Associate Judge Wesley Bogdan revoked Kaipat’s pretrial release, including release for work purposes.
Kaipat was placed under strict house arrest under the supervision of his parents, and was ordered not to leave his house for any purpose, except in situations of medical emergency or for his court hearing dates.
The judge also authorized Department of Public Safety officers to conduct random checks at Kaipat’s residence to ensure compliance.
The judge scheduled Kaipat’s sentencing for Sept. 14, 2023 at 10 a.m.
Nicholas reiterated that the prosecution failed to “prove beyond any reasonable doubt” that Kaipat was guilty.
He cited the testimony of Jaclyn Garfinkle, Federal Bureau of Investigation forensic DNA analyst, who “could not say under oath that the ‘male semen’ in this case were those of the defendant even though she, at all times, had defendant’s DNA as a ‘reference sample.’”
He said Garfinkles’s report “caused more reasonable doubt.”
“Why such great disparities in her calculations of the ‘likelihood ratio’ of the defendant being a contributor given that she [Ms. Garfinkle] used defendant’s DNA as reference…? Ms. Garfinkle’s…explanation only further showed great reasonable doubt in this case,” Nicholas added.
He said Garfinkle “found only ‘male DNA,’ not the ‘defendant’s DNA’ from the fingernail swabs from the Victim. This is most telling given that the Victim claims to have scratched her attacker’s face with her right hand. The Government claims the attacker was the defendant, and yet defendant’s DNA was not found on any of the fingernail swabs from the Victim. This is most troubling given that Government’s Exhibit 11 shows the scratches on the left side of the defendant’s facial area with some of his skin missing as a result of the supposed scratches from the Victim. In light of the foregoing, how then is it possible for the Government to claim beyond a reasonable doubt in this case that Defendant attacked the Victim all the while there was no DNA evidence from Defendant found on the fingernail swabs from the Victim, particularly in view of the undisputed fact that a small portion of Defendant’s facial skin was removed.”
He said another “troubling fact about this case is the claim by the Government that Defendant used [a] ‘dumbbell’ to attack the Victim. This claim is totally absurd as a matter of law. There was never any evidence introduced by the Government to support their claim herein beyond any reasonable doubt. There was never any DNA testing done by the Government connecting the ‘dumbbell’ to the Victim’s injuries even though the ‘dumbbell’ appears to have ‘hair’ on it…. What is equally regretful, as a matter of law, is the fact that the Government was/is very much aware that there were no fingerprints lifted from the ‘dumbbell’ that matched defendant’s fingerprints. This proves beyond any doubt that defendant was never inside the Victim’s room, i.e., the crime scene, much less inside the…residence.”
Nicholas also argued that “the court’s questioning Defendant’s counsel as to the paternity of his oldest son (which brought out a laugh from the jury pool who were present in the courtroom) to also include questioning the defense counsel in front of the jury as to why he needed to approach a testifying witness who was to testify against his client, portrayed defense counsel in a ‘bad light’ before the jury pool and subsequently the actual jurors as somebody who cannot be trusted with the ‘truth,’ much less the safety of a testifying witness against his client.”
According to Nicholas, the jury’s verdict “is very much not supported by the evidence in this case. Simply put, could it be that the court having expressed its ‘distrust’ of the defense counsel before the jury as then members of the jury pool and now as the actual jurors in this case had something to do with the jury finding the Defendant guilty on all counts?”
The case against Kaipat stemmed from an incident that occurred in a San Vicente home four years ago.
On June 2, 2019, the Department of Public Safety said it responded to a “home invasion incident” and a “disturbance” in San Vicente where a 24-year-old woman was raped and seriously hurt. Kaipat, for his part, claimed he was assaulted in a separate incident.
In her testimony during the defendant’s trial, FBI forensic DNA analyst Jaclyn Garfinkle stated that seminal fluid was identified in the buccal swab taken from the victim, and “there was a very strong support…highly likely [that] Kaipat was the contributor.”
“Cervical swab…also indicate Kaipat was the contributor of the DNA found. [The] conclusion drawn from this is that there’s a very strong inclusion of Kaipat’s DNA in the samples tested,” Garfinkle said.
“The victim’s right- and left-hand swab also indicated very strong support DNA from Kaipat and the victim…and Kaipat’s right-hand swab shows the victim’s DNA as a strong contributor to the sample taken,” Garfinkle added.
