October 3, 2003

The judge has ruled.

So, do we now have all of the answers so we know what to expect Thursday at Kobe Bryant's scheduled preliminary hearing? Not hardly.

Based on precedent, Eagle County Court Judge Frederick Gannett decided that Bryant's youthful accuser cannot be compelled to testify, but in the same breath, suggested that she should have to, implicitly inviting Bryant's defense team to undertake an immediate appeal.

Defense access to the alleged victim's medical records will be determined by another judge, at another time.

And the preliminary hearing will not be closed to the public - at least not until it is too late for anyone to complain.

Such is the schizophrenic nature of the preliminary hearing process in Colorado, as aggravated by the problems inherent in the highly publicized criminal case.

In theory, preliminary hearings are designed to weed out the weak felony case, requiring proof of probable cause to support criminal charges originally filed by prosecution decision alone.

In practice, however, over the last three decades, legislation and appellate decisions have diluted preliminary hearings so much that in most cases, they are little more than rubber stamps to the charging decision.

Preliminary hearings have been eliminated altogether for lesser felonies, except where conviction requires a mandatory prison term. The rules of evidence are relaxed if not entirely absent, witness credibility remains off-limits, and rarely are defense attorneys permitted to call witnesses of their own choosing.

To prosecutors, preliminary hearings are now just bothersome hurdles, where the minimum possible evidence is begrudgingly produced in order to get on to the main event, the trial.

Meanwhile, the defense does its best to discover what it can about the prosecution's case, amid constantly interjected and usually sustained prosecution objections.

At least in the ordinary case.

Everything about preliminary hearings becomes skewed in high- profile prosecutions because every nuance of the preliminary hearing evidence will be disseminated, discussed and dissected ad nauseam by court commentators, legal analysts and talk show hosts.

Suddenly, the stakes change. Prosecutors begin to have visions of providing potential jurors with a dramatic preview of coming attractions, exploiting the casual enforcement of the rules in order to publicize damning evidence that might not come in at trial.

The defense has to walk a very fine line between finding out as much as it can about the prosecution's case and its witnesses without totally tainting the jury pool with damaging details.

Such is the predicament facing Gannett, who obviously very much wants Bryant to have a meaningful preliminary hearing without completely eliminating the possibility of having a subsequent trial heard by Eagle County jurors.

So now what?

The defense has little to lose in asking the Colorado Supreme Court to issue an order to show cause, to challenge the ruling that the alleged victim need not testify, even if such appeals are rarely successful.

At the same time, neither the prosecution nor the press is in any position to appeal the court's ruling regarding potential closure of the preliminary hearing, since that decision will not be made until the eleventh hour.

Meanwhile, the prosecution has been told in no uncertain terms to keep it clean and don't be mean, that the judge will close all or part of the preliminary hearing if anything more than the minimum evidence necessary to establish the elements of sexual assault is to be offered by prosecutors.

Prosecutors must show that probable cause exists that Bryant used physical force to cause the submission of the victim to sexual acts against her will.

To be sure, preliminary hearings are not suitable substitutes for jury determination of guilt or innocence.

Still, when only two people know what actually happened and one of them is presumed to be innocent, a preliminary hearing held in the absence of the other contributes little to the truth-finding process.

Which is exactly why there may never be a preliminary hearing held in the Kobe Bryant case.

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

MORE ROBINSON COLUMNS »

Copyright 2003, Rocky Mountain News. All Rights Reserved.