Information showing innocence must be given to the defense

By Kevin Vaughan, Rocky Mountain News
September 3, 2004

Let's say the prosecutors in the Kobe Bryant sexual assault case enlisted an expert witness who turned on them - who told them that key evidence could be used against them - and they kept it secret from the basketball star's lawyers.

And let's suppose they did that knowing full well that the rules of criminal procedure, not to mention a U.S. Supreme Court decision, require them to share "exculpatory" information with the defense.

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Pretty cut-and-dried case of prosecutorial misconduct, right?

Well, it depends on whom you ask.

"There are issues of what is truly exculpatory vs. what isn't exculpatory," said Karen Steinhauser, a professor at the University of Denver law school and a former prosecutor.

Not so, said Denver defense attorney Larry Pozner.

"This is how innocent people end up in prison," Pozner said.

The bottom line: What the evidence means is open to interpretation.

"Exculpatory information is in the eyes of the beholder," said Adams County District Attorney Bob Grant.

At issue is an allegation, lodged by Bryant's attorneys in court filings this week, that prosecutors hired an expert to testify about injuries suffered by the alleged victim. The expert concluded that the injuries might not have been caused during a rape but during consensual sex.

Bryant's attorneys further charged that prosecutors kept that information from them, in violation of the rules that govern criminal procedures and in violation of a U.S. Supreme Court decision known as the "Brady rule."

So what actually happened?

That wasn't clear Thursday - and the answer may never be known. The sudden collapse of the criminal case against Bryant, blamed on the reluctance of the alleged victim to testify, all but guaranteed that there'll be no more examination of the charges.

"The dismissal of the case generally ends it," said attorney Dan Recht, former president of the Colorado Criminal Defense Bar. "I suppose someone might file a grievance against the prosecutors for that, but I doubt it."

Attorneys who have practiced on both sides of the courtroom agreed on only one thing Thursday: that evidence showing innocence must be turned over to the defense.

Steinhauser said she has seen many filings like the one turned in by Bryant's attorneys this week.

But she also said it is seldom that the case is as clear-cut as the defense team alleges.

And even when information is improperly withheld, it's not necessarily indicative of an attempt to deceive the other side, she said.

"In so many criminal cases there are motions that get filed for discovery violations, and the bigger the case, the more the potential exists for thinking that something's been turned over and it hasn't been turned over," Steinhauser said. "There's issues of what is an intentional violation vs. what isn't intentional."

She also said that her understanding of the allegations raises questions about whether the prosecution's expert really possessed exculpatory evidence.

"The issue here is, is this a witness who was going to say this was absolutely consensual conduct - these injuries were caused by consensual conduct?" she asked. "And the answer is no."

Defense attorneys, however, have a completely different interpretation.

"Shame on them," Pozner said. "Shame on them. The Supreme Court sent out a warning 50 years ago that said prosecutors are allowed to strike hard blows, but they must be fair blows.

"It's not a conviction at any price. It's supposed to be a search for the truth. If the government knows things and hides things, innocent people end up in prison."

He went on to call it the "sin of all sins."

"You don't hide evidence," he said. "This is really sad. Having inadequate facts is bad. Hiding facts that show somebody may be innocent is just off the charts. You just don't do it."

Recht was more circumspect.

"If the allegations in the motion are true, it's a very clear violation of the prosecution's duty and obligation to disclose all information that has any possibility of helping the defense," he said.

"That's the standard, and there are no exceptions to that. They have to disclose that information, and if they didn't, the judge can and probably would impose sanctions.

"The law is perfectly clear."

Copyright 2004, Rocky Mountain News. All Rights Reserved.