August 27, 2004

Sure acquittal.

That's how the Kobe Bryant case looked back in June.

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Now, as jurors dutifully report for duty today to fill out questionnaires, have things improved for prosecutors and Bryant's young accuser?

Not hardly.

All of the problems with the prosecution's case remain.

Any rape prosecution that includes the phrase "in the defendant's hotel room" puts prosecutors at a disadvantage from the outset.

To make matters worse, Bryant's accuser, a hotel employee, isolated him from his entourage, then surreptitiously visited his room knowing he would "make a move" on her.

She flirted with Bryant, and lifted her dress to display tattoos, and then willingly kissed and embraced him.

Then, at least according to her statement to sheriff's office investigators, few discouraging words were spoken to Bryant until it was pretty much too late.

Meanwhile, Judge Terry Ruckriegle's ruling admitting testimony about the young woman's love life has opened up for jury consideration and public consumption her amorous activities in the three days before her "rape kit" examination.

Even acknowledging that the expert testimony in the Rape Shield hearing transcripts are one-sided, jurors will still hear the messy details of the origin of multiple biological stains on two separate articles of the young woman's intimate apparel.

Notwithstanding the prosecution's counterattack on defense DNA experts earlier this week, jurors will be put in a position to make critical moral judgments about the alleged victim.

Greed will also raise its ugly head during cross-examination of her, thanks to the poorly timed filing of her federal civil lawsuit against Bryant.

The absence of TV coverage may dilute the young woman's shame at having humiliating sex-life testimony heard by jurors and the media. But so much will be made of the source of stains on her undergarments that her "G-String" could become as infamous as Monica Lewinsky's thong.

To be sure, prosecutors can now use what Bryant told investigators during taped conversations with them, but it is unlikely that Bryant will be truly damned by his own words, since the learned jurist who heard those statements privately during the preliminary hearing, Judge Frederick Gannett, discounted their evidentiary significance.

Moreover, since then, Ruckriegle's comments about the poor audio quality of the secretly recorded audiotapes puts into further doubt their effective use as evidence against Bryant on the critical issue of consent.

On another front, court filings show that the prosecution may be attempting to subpoena a Florida woman who surfaced earlier this month to claim that Bryant groped her on Thanksgiving night in 2002. But prosecutors may have difficulty convincing Ruckriegle that the two situations are sufficiently similar to be relevant. And such a move by prosecutors would force Ruckriegle to re-address constitutional equal- protection issues surrounding the Rape Shield statute.

About the only significant victory prosecutors can point to is the judge's order largely excluding from trial evidence relating to the young woman's mental problems, her use of prescribed medications and two purported suicide attempts. While the ruling implies that some evidence about the young woman's psyche will be permitted, nevertheless most of that aspect of her personal life will remain off-limits, depriving the defense of one component of its planned "nutty, slutty" defense.

Perhaps the most troubling aspect of the entire sorry scenario is the impact that this highly publicized criminal case will have on other cases and on other women.

Unique circumstances aside, taking a case this weak to trial, and literally exposing a vulnerable young woman to public scrutiny and scorn, will unquestionably do far more damage than it can possibly do good.

Even if everything she has said about being the victim of forcible rape is entirely true.

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

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