February 4, 2004

What did Kobe say?

And why shouldn't a jury hear what he initially told officers investigating allegations of forcible sexual assault, before he lawyered up?

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Because Tuesday's testimony establishes multiple grounds for the exclusion of Bryant's statements from any trial, as a consequence of clear violations of constitutional and statutory law.

The sexual assault allegedly occurred on June 30th of last year, at the Cordillera Lodge in Edwards. The following day, the alleged victim reported the incident to the Eagle County Sheriff's office, which obtained two warrants just after midnight on July 2, 2003.

One warrant authorized a search of Bryant's hotel room for the shirt and pants he had worn, while the second empowered officers to take Bryant from the Cordillera to a hospital for the limited purpose of obtaining "nontestimonial identification" evidence, which in sexual assault investigations, includes blood and hair samples for later DNA comparison.

After receiving the signed warrant by fax, Eagle sheriff's detectives immediately went to the Cordillera, arriving there about 12:45 a.m. After activating a hidden tape recorder, and without advising Bryant of his Miranda rights, the officers questioned him for over an hour before finally taking him to the hospital.

That the questioning was secretly tape-recorded is of no legal import, because surreptitious recording is legal in Colorado so long as one party to a conversation consents.

This is not the first time that Eagle County authorities have used a hidden tape-recording device during their initial contact with a suspect in a high-profile investigation.

Two summers ago, a sheriff's deputy responding to a 911 call on a domestic shooting activated a tape recorder, even as the near-hysterical woman who had called the authorities was being proned out and handcuffed.

Ironically, in that case, it was the prosecution that ultimately sought to exclude what the woman said from evidence, with the defense advocating admissibility as proof that the shooting was justified.

So if it was permissible to secretly record Bryant's remarks, and the officers had warrants, what did they do wrong?

Just about everything else imaginable.

Unlike an arrest warrant, which requires probable cause, warrants for nontestimonial identification procedures are issued on just "reasonable grounds" alone. As a consequence, such specialized warrants can only be served during daytime hours unless court-authorized to the contrary.

Nontestimonial identification warrants also require that the biological samples be obtained expeditiously. The warrant itself directed the officers to detain Bryant no longer than was necessary.

Finally, established precedent forbids suspect questioning altogether during the execution of such warrants, and no questioning of an individual who is in custody is ever permitted before Miranda advisement.

While the prosecutors did their best Tuesday to depict the discussions between Bryant and the detectives as a "consensual interview," the evidence heard so far by Chief District Court Judge Terry Ruckriegle would seem to demonstrate that the officers illegally exploited their warrants as an excuse to question Bryant, seeking incriminating responses.

Suppression is a near certainty: The officers repeatedly violated the law, contacting Bryant at night, failing to transport him to the hospital right away, and questioning him at all, let alone without first reciting the Miranda warnings.

Will suppression of Bryant's statements thwart justice in this case? Not hardly.

While we may never learn what it was that Bryant told the officers during the hotel room interrogation, obviously he did not blurt out an outright confession to rape.

This we know because of the language used in the probable cause order issued by County Court Judge Frederick Gannett after the preliminary hearing in the case, in which Gannett described the prosecution's evidence as "minimal" - even including Bryant's still-secret statements.

Underwhelming as the statements may be as proof of guilt, public policy requires exclusion of everything that Kobe Bryant told the officers that night, even had his remarks been damning.

While the officers surely acted with the earnest intention of fully and fairly investigating a serious allegation of forcible sexual assault, good faith ignorance is just not enough.

Good intentions do not admissible evidence make.

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

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