August 4, 2004

Did Kobe grope and hope?

Did he subject a 22-year-old Florida woman to unwarranted sexual advances on Thanksgiving 2002 and count on her not reporting him to the police?

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More importantly, can and should Eagle County prosecutors offer up the woman's story in Bryant's upcoming trial?

The latest Kobe bombshell, dropped Tuesday from a magazine Web site, raises the issue of whether past events can be brought to bear on current criminal charges

Colorado courts have struggled for years with the admissibility of so-called "other acts" in criminal cases.

Historically, evidence of other wrongdoing could not be used at all to prove the commission of a separate, later crime.

In the last few decades, this rule of exclusion has been eroded significantly by appellate courts, to such an extent that it is now routinely described as a "rule of admissibility."

Not to be outdone, Colorado legislators in 1975 passed the first of several laws that apply only in cases of alleged sexual assault.

Although such evidence cannot be used to prove "propensity" or bad character, the list of now-recognized exceptions includes negating a defense of consent.

In marked contrast with the Rape Shield statute, which protects the complainant in sex assault prosecutions from having to defend against allegations of wanton promiscuity, the law presumes that evidence of other sexual acts by the accused are relevant and highly probative, even when dissimilar and remote in time and place.

It was this incongruity in the law that Bryant's criminal defense team emphasized in arguing on equal protection grounds that the Rape Shield statute is unconstitutional.

Before then, prosecutors had announced in open court that they would not be offering testimony from other women about alleged past sexual improprieties committed by Kobe Bryant.

That representation by prosecutors played no small part in District Judge Terry Ruckriegle's denial of Bryant's constitutionality challenge to the Rape Shield statute. The statutorily inconsistent treatment of alleged victim and accused in sex cases would not matter since prosecutors had proffered no evidence of prior wrongdoing by Bryant.

All that changes if prosecutors now seek to compel testimony from the apparently recalcitrant Orlando woman and from other supposed witnesses such as Bryant's former NBA teammate, Shaquille O'Neal, about Bryant's sexual shenanigans more than 20 months ago.

Since prosecutors have reportedly known about this young woman for months, Ruckriegle may rule that the prosecution cannot now add her to the witness list, particularly because of the suspicious timing of this latest revelation - hot on the heels of Monday's public release of embarrassing excerpts from closed Rape Shield hearings.

To be fair, there is no reason to think that prosecutors played any role in leaking the story. But cynics may view Tuesday's report of the tale of "Miss Y" as someone's calculated antidote to just-released expert testimony that Bryant's accuser consorted with a "Mr. X" after her time with Bryant.

Even if the judge rules that this is not a case of too little, too late, the prosecution may want to think twice about using such a two-edged evidence sword to try to prove the absence of consent at the Cordillera Lodge last June.

If prosecutors persist, Ruckriegle will have to reconsider his order upholding the constitutionality of the Rape Shield statute, which no prosecutor wants.

Such a ruling would require an immediate appeal under Colorado law, and a considerable delay in the case.

Whether or not Bryant has other sexual skeletons in his closet, chances are prosecutors will not now try to prove his guilt by resorting to testimony from another woman.

Prosecutors have too much to lose, and not enough to gain, to belatedly attempt to convince Judge Ruckriegle that such testimony has a proper place in the trial.

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

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