The Denver Postjim spencer
Bryant case should have been dropped months ago
Thursday, September 02, 2004 -
When news came that the sexual-assault case against Kobe Bryant had been dropped, my first inclination was to draft a Colorado Open Records request.
I want to know what this prosecution cost the taxpayers. I'm pretty sure we didn't get our money's worth. Worse, the expense may have hurt the cause of sexual-assault victims in Colorado. Victim advocates blame that on Bryant's wealth and celebrity as a professional basketball star. But this case stank no matter who the defendant was. "These were lousy facts," said David Fogel, a former federal prosecutor and president of the Colorado Chapter of the Federal Bar Association. "If you have money, there is a different justice system," Fogel said. "The system is not equal." In this case, Fogel continued, Bryant's ability to afford Hal Haddon and Pam Mackey all but assured his acquittal. The defense team revealed prosecution flaws that may have led to a dismissal. "I don't think this case would have been dismissed for a less-affluent defendant," Fogel said. That does not mean that Fogel thought going to trial was a good idea for prosecutors. "I wouldn't have brought a case here," he said. That's not Monday morning quarterbacking. It's pure legal logic. This case was critically wounded the moment forensic records suggested multiple sex partners for the alleged victim, including one after her alleged assault. Proving this case beyond a reasonable doubt with that evidence made prosecuting any Joe Blow a long shot. So an argument can be made that Eagle County District Attorney Mark Hurlbert should never have brought a case once he knew that the alleged victim had someone else's semen in her underpants when she went for a medical exam the day after she said Bryant raped her. By pushing a flawed case, Hurlbert and his prosecutors may have hurt the cause of sex-assault victims as much as the sometimes-vitriolic Mackey, the occasionally inept courthouse staff and the always-salacious media. "I don't think it helps sexual-assault victims to prosecute cases that can't be won or that have to be dropped," said Christopher Mueller, a professor of law at the University of Colorado at Boulder. Mueller, who teaches about evidence, added, "I can't look at these facts and see a way to win. It would have been very hard to convince a jury regardless of who the defendant was." Kathie Kramer, spokeswoman for Rape Assistance and Awareness Program, disagreed. She was happy the prosecution was willing to proceed and was sorry "all the evidence of the case will not be presented." Kramer based her support on a belief that prosecutors understand that the burden of proof is higher in "nonstranger sexual assault" cases. Kramer's position is understandable. But there were good reasons not to bring a criminal case at all, and there were better reasons to drop it long before Wednesday. In March, when the Colorado Supreme Court supported the trial judge's ruling that Bryant's lawyers could investigate his accuser's sexual history, the hopes of a successful prosecution ranked with Ralph Nader's chances of being president. "When I read in the paper that the judge was going to admit that evidence (of the alleged victim's sexual history)," Fogel said, "I felt the case was over." Not for Hurlbert. He dragged this thing out for almost six more months. Hurlbert said Wednesday that the alleged victim had decided that she didn't want to go forward. He acted as if he was still willing to carry this disaster to trial. This case should have been resolved in civil court from the get-go. The criminal case certainly should have been dropped as soon as the alleged victim's sexual history became fodder for a jury. The criminal prosecution of Kobe Bryant might not have been frivolous, but it sure was a waste of time and money. Jim Spencer's column appears Monday, Wednesday and Friday. He can be reached at 303-820-1771 or jspencer@denverpost.com .
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