November 14, 2003

The four-corner offense.

In prehistoric times - before the advent of the shot clock - the waning minutes of college and professional basketball games were frequently characterized by the bizarre spectacle of an adult version of "keep-away."

Whichever team held the lead would hold the ball, hoping to run out the clock with repeated passes, eschewing any opportunity to score.

Court continuances can become the legal equivalent of this stall tactic, particularly if the passage of time helps one side or the other improve its case, or become better prepared for trial.

So what do we make of proceedings yesterday in the Kobe Bryant sexual-assault case? Why the delay in taking a plea and setting a trial date?

In fairness, the case seems to be following the routine custom in Eagle County, where felony trials are often not set until most, if not all, pretrial motions have been decided.

So there is nothing sinister or devious there, but consequences ensue - and conclusions are drawn - from how the defense agreed to proceed.

Because Bryant did not enter a not-guilty plea, the speedy-trial period did not begin to run.

In Colorado, a not-guilty plea triggers a 180-day deadline for trial in a felony case.

Had defense attorneys insisted on pleading not guilty right away, the judge would have been forced to schedule a trial date before mid-May.

By agreeing to a more relaxed schedule, the defense has unmistakenly signaled a willingness to be patient in getting the case resolved.

The question is, why?

The defense appears to hold most of the high cards: The sexual contact took place in Bryant's hotel room, to which the alleged victim secretly returned, knowing that Bryant was attracted to her and would probably "make a move" on her.

She agreed to kissing and some degree of intimacy, perhaps enthusiastically, and then did not report the incident to the police immediately.

Finally, critical physical evidence of the brief physical interaction between the two was compromised by the young woman's casual attitude toward her love life and her undergarments.

The defense has looked ready to go to trial for weeks. So why not strike while the iron is hot? As the preliminary hearing demonstrated, the prosecution is still playing catch-up, and also has important evidentiary testing to complete, to say nothing of having some explaining to do.

Such as why Chief Judge Terry Ruckriegle in Eagle should honor the Colorado Bureau of Investigation's controversial policy of never permitting defense experts to observe its forensic testing, unless the analysis would completely consume the sample.

Critics point to the potential abuse inherent in the exclusion of outside experts from scientific analyses in criminal cases, while the CBI justifies its isolationist policy as preserving evidence integrity and preventing disruptions in laboratory protocol.

Meanwhile, as illustrated by Charlie Brennan's excellent "Travels with Kobe" piece, which appeared in Wednesday's Rocky Mountain News, life in Lakerland is looking up after a rather tumultuous start.

The team is up near the top of the Western Conference's Pacific Division standings, where it feels it belongs. Kobe, Shaq and their supporting cast are performing admirably, and Bryant's appearances in hostile arenas have occasioned no more than the ordinary scorn directed toward opponents.

No protests by victim's groups, no death threats and relatively little controversy. If anything, Bryant's supporters have been far more visible than have his detractors.

Whether because of insensitivity to the plight of rape victims, apathy, ignorance, or a civic-minded appreciation of the presumption of innocence, NBA fans have been largely indifferent to Bryant's legal troubles, caring only about his performance on the hardwood.

So Bryant and his lawyers are suddenly in no particular hurry to go to trial, and who can blame them? Bryant's day-to-day life does not seem that miserable, and Lakers fans and team management seem far more interested in Bryant's on-court offense than in his courtroom defense.

Priorities are priorities, after all.

Scott Robinson is a Denver trial lawyer specializing in personal injury and criminal defense.

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