Experts praise defense but criticize prosecution for apparent gaps in case

By Karen Abbott, Rocky Mountain News
October 16, 2003

One side got holes drilled through it. That was the prosecution.

The other side did great. That was Kobe Bryant's defense team.

That's the analysis of Denver defense attorney Larry Pozner, who attended Bryant's preliminary hearing on sexual assault charges Wednesday in Eagle.

Other legal experts who watched the proceedings agreed.

"Clearly this is not a strong prosecution case," said Denver attorney Andrew Cohen. "Clearly the defense is going to have an awful lot of material to work with if and when the case goes to trial."

Former Denver prosecutor Craig Silverman said the prosecution's case against Bryant now appears so weak that it may hurt future rape victims, who may have a more difficult time persuading anyone that they were raped.

"It's a major step backwards for those of us who believe strongly in the rights of sexual assault victims," Silverman said.

Consider this testimony, the legal experts said, that was elicited by defense attorney Pamela Mackey as she cross-examined prosecution witnesses:

• The young woman worked hard to figure out that Bryant was coming to stay at the resort where she worked as a concierge.

• She stayed late at work that day so she could meet him.

• With only four rooms occupied in the 56-room lodge, she assigned Bryant to one of the most remote rooms and put his bodyguards in the opposite direction.

• She gave Bryant a tour of the lodge during which, she said, they flirted with each other.

• Invited to visit Bryant's room later, she took a circuitous, private route there, going outside the lodge and using employee-only hallways.

• She expected Bryant to "come on to her" if she went to his room.

• She willingly joined Bryant in kissing and hugging in his room. Bryant, who is married, has admitted having sex with the woman but has insisted that it was consensual.

• When a detective first interviewed her, the woman didn't claim that she said no to Bryant, and the detective even asked her why she didn't say no. She said she physically indicated her unwillingness to have sex, placing her hands on Bryant's to stop him, and she told the detective that Bryant then stopped. In later interviews, she said she did tell Bryant no.

• Although a bellhop earlier had been reported to be the first person who encountered the woman after the alleged assault, and he allegedly found her distraught, a night auditor working at the desk where the woman returned from Bryant's room wrote prosecutors later that the woman seemed completely calm to her and did more work before going home.

• When the woman went to a hospital the next day for a rape exam, semen was found in her underwear that wasn't Bryant's. The underwear she had worn on the night of the alleged assault contained a drop of blood. A Caucasian pubic hair, not Bryant's, also was found.

• The woman has acknowledged having consensual sex with one other partner around the same time as the alleged assault. Defense lawyers, maintaining that there may have been two other partners, contend that could account for the injuries the woman said she received when Bryant assaulted her.

• Police officers who visited Bryant's room after she complained that she had been sexually assaulted did not seize evidence from his bathroom, where the woman had said she had wept and bled.

"It's a picture entirely different than the picture the prosecution painted," Pozner said.

"What the defense scored was not a single point or a point here and a point there, but completely related points in the story showing a whole different version of what happened that night - and that version was based on the complainant's own statements," he said.

"It was a devastating day for the prosecution."

Cohen pointed out that prosecutors haven't presented all of their evidence. At the preliminary hearing stage, they don't have to present it all - only enough to persuade a judge that enough evidence exists to try Bryant.

"The question is going to be whether or not they actually have something when they finally lay their cards on the table at trial," Cohen said. "But it's hard to escape the impression this afternoon that there are a lot of problems with this case.

"And those problems are either going to have to be addressed before trial, or Kobe Bryant's going to be acquitted."

abbottk@RockyMountainNews.com or 303-892-5188

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