Denver Post

Experts: Case riddled with doubt, unwinnable
By Howard Pankratz
Denver Post Legal Affairs Writer

Thursday, October 16, 2003 - EAGLE - Basketball star Kobe Bryant's preliminary hearing ended Wednesday with many legal observers predicting that prosecutors would never win the case at trial.

Citing what they considered "bombshell after bombshell" dropped by defense attorney Pamela Mackey, some analysts even wondered why the case was filed.

The analysts still believe that the 25-year-old Bryant, accused of sexual assault stemming from a June 30 incident at a hotel near Edwards, will be ordered by Judge Frederick Gannett to stand trial in district court. Gannett must look on the evidence presented at the preliminary hearing in the light most favorable to the prosecution.

But convincing an Eagle County jury of 12 that Bryant is guilty beyond a reasonable doubt will be another thing, legal experts said.

"Every time Pam Mackey opened a new area of inquiry through her questions, she dropped a bomb on the prosecution, and they all hit. Her aim was perfect," said Larry Pozner, former president of the National Association of Criminal Defense Attorneys.

Compelling evidence

Among the evidence brought out at Wednesday's hearing that lawyers cited as potentially creating strong doubts about the case:

The night auditor at the upscale Lodge & Spa at Cordillera told investigators she didn't believe the 19-year-old accuser was assaulted. The auditor told investigators that the accuser, a front desk employee who took Bryant's reservation, was excited to meet Bryant and stayed hours past her normal working day so she could see him. When the young woman returned from the room where she later claimed Bryant raped her, the auditor, a woman, said nothing looked or sounded amiss when she saw her fellow employee.

The accuser, Mackey said, assigned Bryant to a room in one wing of the hotel and his body guards to another wing and then sneaked up to his room using a back employees' entrance for a previously arranged rendezvous. The accuser told detectives she flirted with Bryant while she was giving him a private tour of the hotel and expected "Kobe Bryant to put a move on her" when they returned to his room.

Legal experts said an investigator's testimony implied that two other men may have had consensual intercourse with Bryant's accuser in the days around the alleged rape, a possible reason other than rape that she had lacerations to her vagina and a small bruise to her jaw line.

Investigators asked the accuser early in the investigation why she never told Bryant "no" in an effort to stop his advances.

Andrew Cohen, a Denver lawyer and full-time legal analyst for CBS News, said he believed that the judge heard a "weak prosecution case" and that even if prosecutors have a lot more evidence, the questions raised by Mackey will persist.

He said the questions go to the accuser's credibility and the scope and quality of the physical evidence tying Bryant to an assault.

"It is devastating that she went to a female night auditor and the night auditor didn't see something," Cohen said.

Former Denver prosecutor Craig Silverman, now a defense attorney who is also a legal analyst, said he doesn't think the case should ever have been filed.

"I don't see any way the prosecution will win this," Silverman said.

He faulted Eagle County District Attorney Mark Hurlbert for proceeding, saying Hurlbert would have done the woman a favor by telling her the evidence simply wasn't there. Silverman specifically noted that there were no marks on the woman's neck where she claims Bryant grabbed her, no torn clothing, no marks on Bryant's body indicating a struggle, and that the only marks on the woman could be attributed to possible sexual relations with other men.

Prosecutor stays resolute

But after the preliminary hearing, Hurlbert and chief investigator Doug Winters, the Eagle County sheriff's detective who was the prosecution's key witness during the hearing, defended the case and the investigation.

Standing outside the Eagle County Courthouse under a bright fall sun, Hurlbert expressed confidence in his case against Bryant.

He noted that this was a preliminary hearing and that all the judge need do is find "probable cause" to bind the case over for trial.

"It is a very, very low standard and no prosecutor puts on their whole case at the preliminary hearing," Hurlbert said. He said the public saw a "sanitized version" of the evidence the prosecution has against Bryant.

He explained that he had a reason for not presenting all the evidence.

"It is not my intent to try this case in the media but to a jury of 12 in Eagle County," he said. "I will say that I'm confident the judge will find probable cause and bind this case over."

Probable cause is defined as "a reasonable ground to suspect that a person committed a particular crime." It is unusual for a case not to be bound over.

Moments after Hurlbert spoke, Winters, the detective who led the investigation, said that he believed the investigation was "thorough." He said he didn't believe the sheriff's department acted hastily in arresting Bryant.

The detective also said the preliminary hearing was a place where misunderstandings about the prosecution's case can be spotted so they can be rectified at later hearings and at trial.

"No case is going to be perfect first time around," Winters said.

Pozner, the former president of the defense attorneys' association, said he believes that if Hurlbert could go back in time, he suspects a more far-reaching and deeper investigation would have been made and it "would have led to a different filing decision."