By Dave Krieger, Rocky Mountain News
September 2, 2004

As we were saying, they couldn't even make it to the beginning. The wheels came off the Kobe Bryant prosecution in Mayberry, right outside Sheriff Andy's office.

No matter how you look at it - and there are a lot of ways to look at it - it wasn't a great day for Mayberry, although business was good.

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From Bryant's point of view, the question has to be: Why did they file charges in the first place? If they weren't prepared to prosecute, why bring a case?

Was this prosecutorial overreaching? Was it about a little face time on MSNBC? Where does Bryant go to get his reputation back? Does Eagle County have someone in charge of that?

From the point of view of his alleged victim, it's a comedy of errors, though not that funny. The small-town court mistakenly informs the media of evidence damaging to her case. The prosecution withholds evidence from the defense. Pretty much anything these people do is damaging to her case.

Not only that, her sexual and medical histories are all over the planet. The state's rape shield is gone. She is fair game, and if she doesn't want to subject herself to Bryant's high-priced defense team with only Eagle County district attorney Mark Hurlbert to protect her, well, you can sort of see her point.

Is it possible Hurlbert did not know that he could believe her claim and still not have a criminal case?

This is the great non sequitur in our interminable battle of the sexes when the allegation is date rape, acquaintance rape, he-said-she-said rape. We have just been through all this with the allegations around the CU football program. We know what a mess it is.

Every time one of these cases comes up, supporters of the athletes involved let me know just what kind of women we are talking about. I cannot repeat their descriptions here, but it's astonishing how much these people know about perfect strangers of the opposite sex.

At the same time, victims' rights supporters confide just what motivates these jock types. Their descriptions tend to be less obscene, but equally unkind.

These are the stereotypes from which we begin - like Democrats and Republicans, yelling at each other on general principle.

It made perfect sense to me that Boulder district attorney Mary Keenan chose not to bring charges in the CU cases; nor did it render the women's claims invalid. There are some situations, a drunken orgy being one, where credible testimony is hard to come by. That doesn't mean someone didn't do something wrong. Doesn't mean someone did, either.

It is the prosecutor's job to know not merely what happened but what can be proved.

Think of the facts we know in the Kobe case. Two people in a hotel room. A little making out, a little petting. One of two things happens. She tries to stop and he bends her over a chair and takes her, as she alleges. Or they have consensual sex, as he says.

From information mistakenly e-mailed by the court and other sources, we gather the physical and eyewitness evidence will appear ambiguous:

Someone will say her injuries suggest rape; someone will say they don't. Someone will say the blood on Bryant's shirt matters; someone will say it doesn't. Someone will say she was upset afterward; someone will say she wasn't. Someone will say she had sex with someone after Kobe and before her rape kit; someone will say she didn't.

The point is, when you are prosecuting a criminal case, you have that pole vault of a burden of proof - beyond a reasonable doubt - and he-said-she-said doesn't cut it.

Like it or not, good prosecutors learn to pass on cases in which they believe a crime was committed but they cannot achieve the required burden of proof.

In civil court, of course, the bar is much lower. The more believable witness in a he-said-she-said can win. So while the civil case might look like a simple money grab, it might also be the only place the alleged victim has a chance with this set of facts.

For some people, the absence of a viable criminal case makes the allegation illegitimate. And yet, it seems clear that even if the alleged victim in this case is telling the truth, she doesn't have a criminal case.

The prosecution literally blamed the victim in dismissing the case, explaining she was unwilling to go forward. But it's not as if the prosecution's miscalculations, and the mistakes of the court, didn't contribute to this decision. In fact, her father's letter to the court and her lawyer's statement suggest these were her principal reasons.

It was a flawed case pursued badly. When the alleged victim finally withdrew, it was because of her declining faith in the prosecution and the court.

Hard to argue the point.

kriegerd@RockyMountainNews.com

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