Blood on T-shirt, quick contact are hurdles for defense

By Charlie Brennan, Rocky Mountain News
August 26, 2004

The single most troubling piece of physical evidence for the defense at Kobe Bryant's trial might be the few tiny streaks of his alleged victim's blood found on the inside of the lower front of his white Nike T-shirt.

That's not the kind of publicity the athletic apparel giant hoped for when, a few weeks before the alleged assault, it signed Bryant to a new $45 million endorsement deal.

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But some legal experts believe it could be as big a problem for the Bryant defense team — perhaps the biggest evidentiary issue it'll have to address — in persuading jurors to find Bryant not guilty of forced sexual assault.

"The most difficult item of evidence for the defense is the blood on the T-shirt. That's the real toughie for them," said Paul Campos, a professor at the University of Colorado School of Law.

"Juries tend to function based on common sense, seat-of-the-pants judgments. They are made up of lay people. And the seat-of-the-pants, intuitive judgment people make in the context of a sexual assault charge is that blood equals violence, and violence equals sexual assault.

"Blood and sex is a combination that tends to freak people out a little bit."

A defense forensics expert testified at a closed pretrial hearing June 22 that the alleged victim's last menstrual cycle ended June 21, nine days before she met Bryant at the Lodge & Spa at Cordillera. The amount of blood at issue on Bryant's T-shirt is minute.

When Detective Doug Winters was cross-examined about it at Bryant's preliminary hearing Oct. 9, he admitted that he didn't initially see it, when Bryant voluntarily surrendered his shirt to investigators.

"It took a forensic evaluation at CBI to notice that blood, correct?" he was asked by defense lawyer Pamela Mackey. Winters admitted that was true.

Denver defense lawyer Lisa Wayne, who has defended more than a hundred sexual assault cases, thinks Campos overstates the significance of the blood evidence.

"My understanding, what I can glean, is that it's a speck," she said. "It seems to me it's probably such a small amount that it's irrelevant to anything. The nature of intercourse with anybody is that some amount of blood could be what's left over; that just means nothing."

Mackey's cross-examination of Winters, plus the defense team's successful fight to win a limited exception to Colorado's so-called rape shield law, enabling them to introduce evidence of the young woman's sexual history in a 72-hour window around the time of her encounter with Bryant, indicates that the defense will try to convince the jurors that the blood resulted from several consensual encounters in a short period of time. The defense has earned many headlines by claiming that DNA evidence shows she even had sex with someone in the 15-hour period between her encounter with Bryant and her examination at the Valley View Hospital in Glenwood Springs the next afternoon.

However, Campos said, "One problem for the defense is that, logically, the claim that she had sex with this other guy, afterward, would have no evidentiary value (to the defense) in terms of explaining the presence of the blood" on Bryant's shirt.

But referring to the DNA evidence that the defense claims shows sexual contact by the victim shortly after she was with Bryant, Campos said, "Ultimately, that's just such a devastating piece of evidence for the prosecution. I would bet a lot of money, if I was a gambling man, which of course I'm not, that there's no way they're going to get a conviction in that case."
The presence of semen and sperm from another man found in the woman's underwear, and on her body during her rape examination, has been a central focus of the case.

But there are numerous other key pieces of evidence, some that have been publicly discussed at length — such as Bryant's initial statement to detectives, captured by a hidden microphone. The defense fought to keep it out, at trial, and lost that battle. But the quality of the tape is poor, and the substance of Bryant's remarks, although the subject of much speculation, isn't publicly known. It's impossible to predict how it will play to the jury.

At the young woman's physical examination, a small bruise was discovered on her left jawline. Was it caused by Bryant's grip, as he allegedly prevented her from leaving, during their encounter? If so, why didn't Winters notice it when he first interviewed her, or when he first saw her at her parents' home?

The correct interpretation of some physical trauma to the alleged victim's vaginal area, two lacerations about 1 centimeter in length, and more measured at about 2 millimeters, will be hotly debated; is it evidence of forced penetration by the defendant, as prosecutors claim, or consensual penetration by Bryant and one or two additional men, as the defense maintains?

Wayne points out another possible problem for the defense that few have talked about.

By the alleged victim's account, she was forced over a chair in his hotel room and raped from behind in a brutal encounter that lasted only a few minutes.

"It was just clearly a sexual encounter for Kobe, and it was quick and dirty," Wayne said. "And that, in and of itself, is going to go against some people's nature of what's right. There is going to have to be some explanation for that for the jurors, especially him being married, and with a baby."

Copyright 2004, Rocky Mountain News. All Rights Reserved.