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Denver Post
DAs support charges in Bryant case
Friday, October 17, 2003 - Two Denver-area district attorneys on Thursday blasted legal analysts who believe there is little chance that prosecutors will prevail in the Kobe Bryant sexual assault case.
A day after the conclusion of the preliminary hearing in Bryant's case, Dave Thomas, the Jefferson County district attorney, and Bob Grant, from Adams County, said prosecutors rarely reveal at such hearings the full scope of their evidence. This, Thomas said, makes speculation that the prosecutors in the Bryant case will lose at trial "premature and uncalled for." "A preliminary hearing is not a mini-trial," Thomas said. "You don't put all your evidence on. So I think for commentators and pundits to say things like, 'I can't understand why they would bring such a fatally defective case, it's not fair to Kobe, it's not fair to the accuser,' is unjustified." Added Grant: "As soon as the (prosecution's) evidence was put on that (the accuser) said that she did not consent to this sexual assault, the preliminary hearing was over." Thomas said he met with Eagle County District Attorney Mark Hurlbert after the charge was filed. And Hurlbert made his decision only after consulting with several Front Range district attorneys. "I have absolutely no doubt in my mind at all that (Hurlbert) took his decision very seriously; he looked at all the evidence fairly and objectively," Thomas said. Thomas and Grant also said they believe some of the allegations made by the basketball superstar's attorneys about the accuser's sexual history may never be heard at trial. The two district attorneys were referring to information that came out at Wednesday's hearing. Bryant's attorney, Pamela Mackey, revealed through cross-examination of a sheriff's detective that the woman went to her sexual-assault exam the day after the alleged rape wearing panties that had semen and pubic hair in them belonging to someone other than Bryant. The Los Angeles Lakers player's defense team is seeking to show that her injuries could be attributed to something other than her encounter with Bryant. Many legal commentators said after the hearing that the information revealed by Mackey amounted to a "bombshell" that could sink the prosecution's case. Bryant, 25, faces four years to life in prison if convicted of sexual assault in the June 30 incident at the upscale Lodge & Spa at Cordillera near Edwards. He has said he had consensual sex with the 19- year-old woman. At a news conference after the hearing, Hurlbert said: "No prosecutor puts on the whole case at preliminary hearing. I'm confident the judge will find probable cause and will bind this case over (for trial in district court), and I'm confident in this case against Kobe Bryant." But many legal analysts agreed with Lisa Wayne, a Denver defense attorney who Thursday said Hurlbert's relative lack of experience seemed evident in the way he allowed Mackey to point out the holes in his case rather than putting them on the table himself. "Experience tells you that, as a prosecutor, you need to lay out the good facts and the bad facts of your case early on," Wayne said. "The reasons for that is that there are no secrets in a criminal case. "To maneuver in a preliminary hearing where it appears you're trying to hide the ball, you not only lose your credibility with the public, but you lose your credibility with the victim because she's going to say, 'Why didn't you protect me, or why didn't you at least tell me it was going to come out?' Eventually it's all going to come out." Wayne and others also speculated that perhaps the charge against Bryant never should have been filed. "I'm not sure they spent as much time with this accuser as they should have," she said. "It seems to me that, when you look at it under the microscope, maybe they would have looked at it a little differently. It's easy for all of us to say in hindsight, 'I would have done, and he should have done.' Who knows? I'm not going to make that call." Thomas and Grant dismissed such speculation. They said they, like Hurlbert, are confident the Eagle County district attorney did the right thing in charging Bryant. Thomas noted that prosecutors have an ethical standard that requires them to seek justice, even if it might result in no charges being filed. The standard they look at, he said, is whether they have a reasonable probability of obtaining a conviction in the case based on the evidence. "I think he (Hurlbert) was convinced at that point that it met the standard. And judging from what he said yesterday, he still believes that," said Thomas. Krista Flannigan, spokeswoman for Hurlbert's office, reiterated Thursday that the case wasn't filed on a whim. And whether the defense scored points in the "court of public opinion" doesn't matter, she said. "That's not what is important," she said. "What is important is what the court's opinion is. That's who we play to, is the court and the jury." She added that the district attorney's office didn't show all of its cards because it doesn't want to taint the jury pool. "We don't want to taint our jury pool by allowing them to have all the information," Flannigan said. Thomas and Grant also said they believe that Eagle County Judge Fred Gannett allowed Mackey to go into areas of the accuser's sex history that are protected by Colorado's rape-shield statute. As a result, they say, a district judge may not allow that history in at trial. "I think it is possible that a district court judge will say none of this is coming in, or some of it is coming in, but not other parts, depending on what the proof is in the case," Thomas said. Grant said that Gannett didn't appear to realize that the alleged facts about the accuser's sex life might be broadcast worldwide by the media covering the hearing. "A thoughtful judge, in my view, would have said there's evidence that is trying to be presented here that may or may not be presented to the trial jury. That evidence should have all been heard in chambers so that the trial judge could make a reasoned decision to allow it or not to allow it," Grant said. Thomas was specifically upset that the defense tried to read something into the fact that nurses found semen that didn't originate from Bryant in a pair of panties the accuser wore when she went to a hospital to be examined. The panties were not the pair she said she was wearing the night of the Bryant incident. "I think it is of very little significance, because it would apparently have to do with her private life, separate and apart from Kobe Bryant, which I think may be protected by the rape-shield law," Thomas said. "I don't see how the semen in a pair of underwear add or detract from defense arguments" about whether Bryant caused the injuries to the woman. Both Flannigan and Grant emphasized that all the prosecution must prove at a preliminary hearing is probable cause. Probable cause is defined as "a reasonable ground to suspect that a person committed a particular crime." And Colorado judges must view the evidence at a preliminary hearing in the light most favorable to the prosecution. "In terms of general strategy, it's kind of like the last preseason game of the season," Grant said of the preliminary hearing. "You're not interested in running up a six-digit lead. You're interested in meeting the legal standards, which in laymen's terms is that it's more likely than not that a crime was committed, and it's more likely than not that this guy did it." Thomas worries that the the Bryant preliminary hearing may cause sex assault victims to be reluctant to come forward. "I think it takes an immense amount of courage for any sex assault victim to proceed to trial," the Jefferson County DA said. "And that's one of my concerns. "I think this (the Bryant preliminary hearing) has made our task in providing our best services to victims of crime much more difficult. Every rape victim is going to come and say, 'Are they going to do to me what they did to her?"' |