Denver Post

Defense tainted Kobe case

Friday, October 17, 2003 - The Kobe Bryant case has become a tawdry media circus, complete with possibly jury- tainting assertions that the alleged victim was promiscuous and the repeated use of her name despite Eagle County Judge Frederick Gannett's orders against revealing her identity at this point.

Sadly, it appears that Gannett has lost control of his courtroom, much as Los Angeles Superior Court Judge Lance Ito abdicated authority during the 1995 double murder trial of former gridiron/media star O.J. Simpson. We can't help contrast that "Trial of the Century" with the firm hand of U.S. District Richard P. Matsch, who never allowed defense attorneys to hijack the Oklahoma City bombing trials in Denver.

Neither justice nor the public interest were served by the sorry spectacle during Bryant's two-session preliminary hearing this week and last in Eagle. The purpose of the hearing is to determine if probable cause exists to proceed to trial.

Bryant, who is accused of raping a 19-year-old female employee of the pricey Lodge & Spa at Cordillera near Edwards on June 30, claims the sexual intercourse was consensual. If convicted, he could be sentenced from four years to life in prison.

Some may question the tactics of the legal team representing the Los Angeles Lakers basketball star and whether defense attorney Pamela Mackey crossed the line between vigorous advocacy and dirty pool.

On Oct. 9, during the first part of the hearing, Mackey used the former concierge's name at least six times in open court, despite Gannett's having forbade it. After the first two times, Gannett should have used the power of the contempt citation to ensure no repetitions.

The brazen use of the woman's name sends the unmistakable message to all Colorado rape victims that they should think twice before coming forward. Will women in unrelated cases be cowed into silence by what's happened in Eagle?

Mackey shrewdly introduced an element of doubt that could taint all potential jurors if the case reaches district court: an assertion that the young woman had sex with three different men in the days before the encounter with Bryant. Will any potential juror who heard the allegation be able to keep from thinking it establishes reasonable doubt even if it's never presented to the jury?

A library full of U.S. Supreme Court decisions protects the rights of the accused in criminal cases. Defendants have the right to confront their accusers at trial, which is guaranteed by the U.S. Constitution. We have no quarrel with that. If this case goes to trial, Bryant's attorneys will have the opportunity to cross-examine the woman.

Unlike the alleged victims in less-publicized cases, the woman in the Bryant case already has been subjected to a barrage of unrelenting vituperation in various media outlets in addition to anonymous threats that have driven her out of town. Gannett can't do much about that.

But he could have controlled what transpired in his own courtroom. Unfortunately, he failed miserably in that regard, and in the process may have allowed this case to become unavoidably flawed. And that's a loss for everybody.