Denver Postjim spencer
Bryant case looking like defense dunk
Thursday, October 16, 2003 - EAGLE - Folks at the Eagle County Justice Center received Kobe Bryant as if he were royalty rather than an accused rapist.
Bryant and his posse of lawyers and bodyguards got a king's welcome when they showed up Wednesday for the continuation of a preliminary hearing of Bryant's sexual assault charge. Deputies shooed everyone away from the circular driveway so the professional basketball star and his entourage could pass undisturbed through the front doors. It's hard to imagine any other defendant in this small mountain town getting such a regal reception. But the problem here isn't preferential treatment for a celebrity. It isn't even a big-shot ball player buying justice. The problem here is that any lug off the street with a half-decent defense lawyer could beat this case. The prosecution evidence presented at the two-day preliminary hearing was that Bryant lured the victim to his room, then bent her over a chair and raped her from behind as she said no and tried to resist. The allegation alone will probably lead to a trial in district court. But that's only because the standard of proof is so low. Wednesday brought revelations that Bryant's accuser had admitted having sex with someone else within three or four days of her alleged assault and that semen belonging to another man was found in the underpants she wore to the hospital the morning after she said Bryant raped her. Police have tried to collect DNA samples from two men, said Pamela Mackey, one of Bryant's lawyers, but both refused. Mackey also cast doubt on when and if the victim told Bryant no. Relying on thick notebooks of police interviews and reports, Mackey proved that lead investigator Doug Winters had actually asked the victim why she hadn't said no to Bryant's sexual advances. Mackey also suggested that occupants of the room above Bryant's never heard any struggle, even though the victim said she violently resisted Bryant's advances. Instead, Mackey entered into evidence the victim's statement that she thought Bryant "might try to make a move" on her when she willingly entered his room at the Cordillera resort. She went anyway, kissed him anyway and may have pulled down one side of her top to show him a tattoo on her lower back. After supposedly having sex against her will, she returned to her duties at the hotel's front desk and tallied her till for the day without mentioning her attack to the night auditor. Make no mistake. None of this means she wasn't raped. Trouble is, any of it creates the reasonable doubt a jury needs to acquit Bryant or any other defendant with similar facts. That bodes badly for the victim at trial, so badly that most legal experts who watched or listened to the testimony called the preliminary hearing a slam dunk for the defense. And the attorney gadflies at this media circus were legion. Denver lawyer Larry Pozner, the former head of a national association of criminal defense lawyers, spoke of the "gaping holes" in the prosecution's case. Craig Silverman, a former Denver prosecutor, was moved from hype to hyperbole. "It would be easier for the Nuggets to win an NBA championship than for these prosecutors to win this case," Silverman opined for a gaggle of national, state and local reporters. "Wise prosecutors," added Silverman, "would have told this woman that this case couldn't be proved beyond a reasonable doubt." Wise prosecutors would have told the victim to plead her case in civil, not criminal, court. "I don't see any way the prosecution can win this," Silverman said. Eagle County prosecutor Mark Hurlbert remains confident. He said the preliminary hearing was a "sanitized version" of the evidence and promised he would bring more damning facts to trial. He'd better. CBS analyst Andrew Cohen was more circumspect about the prosecution's chances than Silverman, but not much more hopeful. "Little things that usually add up for the prosecution in a preliminary hearing added up for the defense here," Cohen explained. "It's hard to understand now why prosecutors would have insisted on going ahead with this. Any decent defense lawyer would raise these issues." In other words, unlike O.J., there's more talking here than money. And what's being said isn't good for the victim. The Colorado Coalition Against Sexual Assault started Wednesday passing out a news release condemning Bryant's lawyers for smearing the victim. By the time the preliminary hearing ended several hours later, Bryant's lawyers had succeeded. Cynthia Stone, spokeswoman for the coalition, put the best face on it that she could. "We've only heard a small part of the victim's case," she said. "Some victims want to see the process through." Those people want to be made whole. This person could end up drawn and quartered. Jim Spencer's column appears Sundays, Tuesdays and Thursdays in The Denver Post. Contact him at 303-820-1771.
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