October 21, 2003

Now it's official.

Kobe Bryant will face a jury trial.

After a controversial and contentious preliminary hearing, Eagle County Court Judge Frederick Gannett ruled that, under the standards he was forced to follow, the evidence justified a trial.

A victory for the prosecution? Not hardly.

Bryant's lawyers obviously knew better than did well-meaning but completely wrong legal analysts about what could be accomplished in a preliminary hearing.

The preliminary hearing testimony revealed that the young woman protested too little and waited too long in claiming rape.

Acquittal now appears likely, but beyond the outcome at trial, how will this highly publicized, microscopically scrutinized case affect how our society deals with alleged criminal sexual assaults by celebrity defendants?

For historical perspective, forget William Kennedy Smith and Mike Tyson, and go back instead to the three rape-murder trials of silent film star Roscoe "Fatty" Arbuckle in 1921-1922.

Arbuckle was accused of sexually assaulting a young starlet named Virginia Rappe so violently that she died four days later.

The first two trials ended in hung juries, the third in acquittal. The public clamor and yellow journalism that surrounded the case eclipsed almost all other news at the time.

Arbuckle's alleged victim was freely named in newspapers, in coverage astonishingly biased against Arbuckle. Not publicized were the details of Rappe's wild lifestyle.

How things have changed. The Bryant case has brought to the fore persistent public-policy issues such as courtroom closure, identity secrecy and victim sexual history - in effect, reviving a lively debate about how we deal with sexual-assault cases.

Now what?

A likely scenario would be for Bryant to seek as speedy a trial as possible - unless he wants to go through the entire NBA season with this case hovering over his every move.

And his lawyers?

For months, the defense devoted its efforts to setting the stage for a meaningful preliminary hearing.

They subpoenaed Bryant's teenage accuser, along with her medical and counseling records, which chronicle her state of mind before and after the alleged sexual assault.

Then, having been rebuffed in their efforts to cross-examine the young woman herself, the defense instead attacked her through Detective Doug Winters.

Now the defense will turn its attention to shaping the evidence for trial and analyzing where Bryant's defense will best fly. Expect a flurry of defense motions seeking to exclude all evidence viewed as damaging, and a motion for change of venue.

Few anywhere haven't heard of Kobe Bryant and the allegations against him, but what makes an Eagle County trial most worrisome to the defense is the likelihood that many jurors will know the alleged victim or her family.

If not Eagle, the most attractive alternative is one of three other towns in the same judicial district: Georgetown, Leadville or Breckenridge. Any might be acceptable to Bryant's defense team, depending on the conclusions drawn by their telephone pollsters.

Another key concern for the defense is an electronically enhanced audiotape of the initial interrogation of Bryant by law enforcement.

Deputies reportedly activated a hidden tape recorder when they first questioned Bryant, without giving him the Miranda warnings first.

While the surreptitious recording was legal because Colorado law only requires "one party" consent, the responses given by Bryant are admissible only if voluntary and noncustodial. Otherwise, nothing he said will surface during trial.

No matter what, it is clear that some things have changed in celebrity trials. Acquittal notwithstanding, Arbuckle's career was ruined, and he died in 1933 a broken man.

In contrast, despite a guilty verdict and incarceration, Mike Tyson fights on. And while facing charges, Bryant still holds down his day job with the Lakers. Barring conviction and imprisonment, he may still redeem his ludicrously lucrative career.

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

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