By Scott Robinson
September 2, 2004

Dismissal after 14 long and agonizing months.

Who would have thought such a thing possible, even in a case as unusual as People vs. Kobe Bryant?

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Anyone endowed with common sense and even a modicum of criminal trial expertise, that's who.

The sexual assault prosecution brought against the NBA superstar started out on the wrong foot and has limped steadily downhill ever since.

Forced to file the case by political realities and the precipitous action of the Eagle County Sheriff's Office in getting an arrest warrant prematurely, District Attorney Mark Hurlbert and his assembled team of prosecutors had a difficult battle from the outset.

Setback after setback transformed a weak case into an absolutely hopeless cause. The new revelation about allegedly withheld expert opinion - this having to do with the cause of the accuser's minor injuries - finally, albeit belatedly, convinced Hurlbert to abandon the case.

Brave faces and brave words aside, that is why the case was dismissed, and it cannot be refiled in the future, no matter what.

While double jeopardy does not bar prosecution, since a jury had not yet been sworn in, Bryant's speedy trial rights and established precedent requiring extraordinary new evidence to justify refiling combine to completely rule out any new trial motivated by "prosecutor's remorse."

So why now? Prosecutors fought bravely on even after learning, for example, that DNA analysis of the young woman's undergarments coupled with her physical injuries led Eagle District Judge Terry Ruckriegle to allow evidence at trial about the accuser's apparently action-packed love life.

Was it because, as Hurlbert claimed Wednesday in an altogether transparent pre-election speech, that the young woman herself had finally decided that she could not go on?

Color me cynical, but what obviously forced the dismissal was the fact that by Wednesday the writing on the evidentiary wall was finally so large and so legible that even the most stubborn and steadfast prosecutor could recognize the reality of certain defeat - and probable disgrace.

Defense lawyers had asked for dismissal based on prosecutorial misconduct, having allegedly learned from renowned pathologist Dr. Michael Baden - an erstwhile prosecution witness in the case who was abruptly dropped by prosecutors without explanation in mid-July - that he had advised prosecutors that the young woman's injuries were at least as consistent with consensual sex as with forcible sexual assault.

Talk about a bombshell. Because prosecutors were relying on those admittedly modest injuries as perhaps the most important component of their difficult case, and because ever since the landmark 1963 U.S. Supreme Court decision in Brady vs. Maryland, the law requires prosecutors to turn over "exculpatory" evidence.

Had they done so, it would have encompassed a defense-favorable opinion by a forensic expert of Baden's stature. He is the chief medical examiner for New York City, a man who received congressional appointments to re-examine the murders of John F. Kennedy and Martin Luther King Jr.

Prosecutors eventually discarded Baden as a witness without much fanfare.

Now comes the clamor, because at least according to court filings, Baden talked with the defense attorneys on Aug. 27, 2004, telling them what he apparently had told prosecutors previously about the probable etiology of the young woman's injuries.

Judge Ruckriegle might have been loathe to dismiss the case even now, had the DA objected, if for no other reason than the effect it would have had on myriad assembled jurors. But at the very least, the judge would have permitted defense attorneys to call Baden as a witness at trial and to reveal to the jury how prosecutors had tried to conceal his opinions.

The case would have been all but over then, whether prosecutors dismissed the case on their own motion or not. After all, Baden's words would be coupled with recently surfacing DNA evidence seemingly implicating a "Mr. X" as a more likely culprit in causing the microscopic gynecological injuries observed during the subsequent "rape kit" examination.

It all goes to prove that even delayed discretion can be the better part of valor, particularly with a contested DA's race looming large on the horizon.

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

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