June 21, 2004

Not guilty.

The pre-ordained outcome of this year's most anticipated celebrity criminal trial (at least so far) is acquittal.

Advertisement

There, it's said. Let the criticism fly for predicting a verdict months before trial, but no matter how this week's hearings on myriad motions turns out, Kobe Bryant will go free.

Not because he hired fantastic defense attorneys, although his lawyers, Pamela Mackey and Hal Haddon, are as capable and conscientious as they come.

Nor is it because the prosecutors are poorly funded, overmatched or lackadaisical in their pursuit of justice.

It's true that, for once in a criminal case, the defense has money, but the prosecution team includes experienced, competent and highly motivated lawyers who will do their utmost to procure a conviction within ethical bounds.

Will Kobe walk because Eagle County detectives botched or slanted the investigation?

Not hardly.

Even though mistakes were made, and the sheriff's office jumped the gun in obtaining an arrest warrant without the DA's approval, the law enforcement officers involved in the case are dedicated, knowledgeable and honest, and conducted a reasonable enough investigation.

No, the reason Kobe Bryant will go free is simple.

The evidence stinks.

Picture this scenario, based on preliminary hearing testimony, sitting as a juror, and applying the test of proof beyond a reasonable doubt.

The young female employee of an exclusive mountain resort becomes excited upon learning that an NBA superstar, Kobe Bryant, is coming for a stay.

Assigning rooms, she isolates the luminous hoopster and takes a circuitous route for a secret visit, expecting him to "make a move," which she finds flattering.

Mutual flirting ensues. She says she has no boyfriend, and lifts her skirt to display a tattoo or two, located on her ankle and on her back.

After this, they kiss and embrace, which was "fine" with her. Then things go further.

Afterward, she counts out her money drawer as though nothing has happened, and when she finally complains to the authorities, she is equivocal as to when and how she said the magic word "no."

So much so that it appears few, if any, discouraging words were spoken until it was too late.

True, prosecutors may not have revealed all of their case at the prelim, but what was shown was utterly underwhelming, barely adequate to get to trial. Now prosecutors will be saddled with the accuser's post-event conduct and statements, no matter what.

So why was the case filed to begin with? Wasn't it apparent from the outset that prosecutors would face rocky, uphill terrain at best?

Probably, but by then, newly-appointed Fifth Judicial District Attorney Mark Hurlbert was caught in a legal and political vise, trying to balance a local girl's outcry of rape against the glaring evidentiary shortcomings in the case.

His historic jurisdiction includes the very different towns of Georgetown, Leadville, Breckenridge, Vail and Eagle, communities separated by geography, geology and ideology.

Just more than three months earlier, Breckenridge resident Hurlbert declined criminal charges in a ski slope death case against a young British man, Robert Wills, who was represented by none other than . . . Pamela Mackey.

How would it have looked if Hurlbert had again chosen not to file, in effect accepting the account of a visiting sports celebrity over a tearful tale told by a local Eagle teenager?

So long DA's job, come election time.

To be fair, the hospital examination of the young woman did reveal mild evidence of trauma, and a spot of her blood was found on Bryant's shirt.

And hotel room or not, consensual kissing, hugging and even a little exploratory groping is not equivalent to consent.

Still, even if jurors never hear word one about shoddy investigation, suicide attempts, psychological problems, unexplained DNA evidence or the young woman's seemingly casual liaisons with other men, acquittal is a near certainty.

Justly or otherwise.

Pretrial hearing begin today

Some of the issues scheduled for consideration during a two-day pretrial hearing that begins today in the Kobe Bryant sexual assault case:

Open court

The jury questionnaire: Both sides have said they agree on most questions in the proposed 100-item document to be given to prospective jurors, but needed the judge's help on a few items.

Jury instructions on defining the elements of sexual assault: The defense wants to tell jurors they must acquit Bryant if they determine the alleged victim consented to submit to him; prosecutors say the defense is misstating the law.

Jury instructions on the investigation: Bryant's attorneys want to instruct jurors that investigators failed to collect evidence that could suggest Bryant is innocent.

Closed court

Expert witnesses: The defense wants to exclude testimony from Michael Baden, a former New York City medical examiner.

Sexual history: Continuation and likely conclusion of a hearing that has spread over four previous court dates on whether the alleged victim's sexual history is relevant to the case. The defense claims the woman's injuries could have been caused by sex with other partners near the time of her encounter with Bryant.

Crime victim compensation: The defense wants information on government money provided to the alleged victim under a state victims' compensation law.

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

MORE ROBINSON COLUMNS »

Copyright 2004, Rocky Mountain News. All Rights Reserved.