Denver Post
Lawyers call victim's credibility key
Evidence not as essential with good witness, some say
Sunday, July 20, 2003 - A strong-willed sexual assault victim can virtually win a court case alone, even if there is a lack of physical evidence, a former prosecutor said Saturday in commenting on allegations against basketball star Kobe Bryant.
Kobe Bryant is charged with sexual assault, a class 3 felony. The class 3 charge means Bryant is accused of causing the alleged victim's submission: Through the actual application of physical force or physical violence; And that he inflicted sexual intrusion or sexual penetration of the victim with any object or body part no matter how slight. Bryant was not charged with the more serious charge, a class 2 felony. Class 2 felony sexual assault alleges that one of the following occurred: The perpetrator is aided or abetted by one or more other people; The victim suffered serious bodily injury; The perpetrator has a deadly weapon.
Bryant told a national television audience Friday that he had consensual sex with a 19-year-old Eagle woman he is accused of sexually assaulting. Bryant said he committed adultery but no crime. 
ABOUT THE CHARGE
Although many lawyers believe there must be a massive amount of evidence to back a victim's story in a consent-defense case, strong sexual assault victims can determine the outcome, said Karen Steinhauser, a visiting professor at the University of Denver Law School.
Steinhauser said that in August 2000, she successfully tried a date-rape case in which the alleged attacker was a scholarship student at the University of Denver.
In that case, the victim and the perpetrator had been drinking and smoking marijuana. The woman, also a DU student, invited her date to her room. There, they kissed, and she allowed him to spend the night.
But when he attempted intercourse, she said, "No." He ignored her.
There was minimal physical evidence. But the defendant was convicted on the basis of the victim's testimony, the former prosecutor said.
"She was a fantastic witness who was on the witness stand for hours and hours," Steinhauser said.
But other lawyers said Saturday that given Bryant's claim that the woman consented to sex, prosecutors will have to amass as much evidence as possible.
Crucial evidence could include bruises and scratches on the alleged victim and the 24-year- old all-star guard for the Los Angeles Lakers.
Other evidence could include torn clothing; evidence of a struggle in Bryant's room, such as overturned or damaged furniture; and emotional statements that the woman made to hotel employees or guests immediately after the alleged assault.
Even so, if the woman doesn't make a convincing witness, and the prosecution lacks support for her claims, Bryant - although poised and well- spoken - may not have to take the witness stand in his own defense.
Nathan Chambers, a former Denver prosecutor turned defense lawyer, said Bryant's statement Friday was a good move as defense attorneys Pamela Mackey and Hal Haddon try to clear their client.
The news conference allowed Bryant to immediately respond to the charge without waiting until Aug. 6, when he is to appear for an advisement hearing in Eagle, Chambers said.
"There was an immediate response to the criminal charges, and the press conference as a whole got Kobe Bryant out there making an unequivocal denial," Chambers said. "My impression of him is that he seemed to be displaying genuine emotion. It didn't appear to be contrived."
Larry Pozner, a Denver-based lawyer and former president of the National Association of Criminal Defense Lawyers, called the Bryant news conference a "superb decision."
"It let America see him and allowed him to look them in the eye and say that while I'm not proud of what I did, what I did was consensual."
Pozner said that in using a consent defense, credibility is crucial, and the alleged victim must describe in detail what happened.
"The questions are: How did you get into the room? What time did you get into the room? Who said what? What were you wearing? How did it come off? Who put it back on? Who helped you take it off?" he said.
Pozner and Steinhauser said it is possible that Bryant may never take the witness stand, especially if the alleged victim proves to be a poor witness and the supporting evidence - including the testimony of other witnesses - is weak.
And Pozner said he has no doubt that Bryant would make an excellent witness.
"Kobe Bryant is quiet, well-mannered, highly respected. And if he tells a jury he didn't do it, they (the prosecutors) are going to have an uphill battle convincing a jury this gentleman became a sex-crazed rapist," Pozner said.
Bob Ransome, a Denver lawyer who has defended many sex-assault cases, said that given Bryant's claim that he did engage in sex but that it was consensual, the case will be a "who-do-you-believe situation."
"It's all credibility," Ransome said. "You are looking at motive. You wonder if alcohol played a part. Was there a miscommunication by either side?"
Also, the makeup of the jury could come into play.
Ransome said that when allegations concern a sex crime, it is difficult to say what juries will do based on whether they live in conservative or liberal judicial districts.
"When you are dealing with sex, it isn't liberal versus conservative. It is human emotions," he said.
And at least one Colorado lawyer, Lisa Wayne, believes race could play a factor in a community that is 74 percent white and less than 1 percent black.
Wayne said minorities have trouble getting fair trials in Colorado, particularly in rural areas such as Eagle County.
Eagle defense attorney Bruce Carey, however, said he didn't think race would be an issue there. Although overwhelmingly white, residents have elected a black man as county commissioner and resort-dependent residents go out of their way to welcome people of all races and cultures, he said.