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Vail Trail Issue
– March 19, 2004
[Bryant trial analysis]
L.A. Laker superstar Kobe Bryant was in a generous mood earlier
this month during his two-day stopover in Eagle for yet another
pre-trial hearing in his notorious rape case. He smiled at a
court bailiff who held open a door. He dashed off waves, grins
and a peace sign to a dozen kids from the Eagle Valley
Elementary-Middle School who made the scene to gawk at the
towering NBA All-Star.
Even Hal Haddon — one of Bryant’s legal guns — was upbeat. He
had a noticeable bounce in his step and a grin on his face as he
walked out of District Judge Terry Ruckriegle’s courtroom. Team
Kobe had reason to be giddy. They pinned the prosecution again
this month and now seem poised to savage the hoop star’s young
accuser in a closed hearing set for March 24. The hearing could
get nasty. Experts say the accuser could be grilled about her
sex life, her sex partners and her favorite sex position. Though
potentially lewd and crude, the hearing will determine what kind
of evidence might be presented at trial.
Credit the defense’s impressive investigation and legal footwork
for exposing gaps in the state’s rape shield law — gaps that
could leave the accuser in tears and the case in shreds. “The
idea of a rape shield is a bit of a misnomer,” said Craig
Silverman, a former Denver prosecutor turned Kobe pundit. “It is
more like a ‘rape gate’ with the judge as the gatekeeper.”
In a motion filed March 1, the defense thoroughly explained why
they had a right to question the accuser behind closed doors.
They contend injuries she allegedly suffered during the alleged
rape came from someone other than Bryant. Not satisfied, they
also trashed the accuser with claims that she bedded someone
else hours after her encounter with Kobe. They even went below
the belt one additional time, adding that she has had sex with
two men who are prepared to testify for the prosecution.
If Bryant’s team is right — and history shows the tenacious
tandem of Hadden and Pam Mackey know their business — then
evidence of a sexual romp or a post-Kobe sexcapade could be very
relevant in this case. John Clune, the accuser’s attorney, tried
to douse the defense’s damaging claims. In a statement released
March 2, he denied that his client engaged in sex hours after
the alleged rape. “Patently false,” he said. “Anyone trying to
prove otherwise will be chasing ghosts.”
Only time will tell if the ghosts will come to life before a
jury. If Team Kobe is blowing smoke, they will be in trouble.
But if the story is true, the case may be toast. Feminists and
“Queer Eye” fans can gripe all they want about an unfair attack
on an alleged victim’s reputation. But it seems as if this case
has reached its tipping point in favor of Number 8. “This case
might soon be over,” Silverman predicted. “I don’t know if the
prosecution will be able to put her (the accuser) on the stand
(at trial) given what she could be opening herself up to.”
Even conservative big mouth Bill O’Reilly opined last week on
Fox that the case is in trouble. If the post-Kobe sex claim is
true then the prosecution is DOA, The Lord of the No-Spin
declared. He’s not alone. Most members of the media pack
covering the case think Bryant will walk in the end.
Prosecutors meantime allege the accuser suffered Post-Traumatic
Stress Disorder as a result of the ordeal. Perhaps that explains
why she may have slept with another fellow after the alleged
rape. And let’s not forget that Bryant spoke freely with the
cops for nearly an hour not long after the alleged rape. Part of
that conversation was captured on a hidden tape recorder.
Clearly Bryant never watched “Dragnet,” “Starsky and Hutch” or
“On the Waterfront,” otherwise, he would have played deaf and
dumb with the flatfoots. Perhaps that tape recording is the
smoking gun that tips the case toward the prosecution. But if
the new defense stories are true, it seem hard to believe that a
jury composed of at least one heterosexual man would trust the
claims of a woman who had sex following a brutal rape.
“If she really did have sex with another man after Kobe, but
before she went to the cops, then any reasonable person would
have to seriously question the provability of the rape charge,”
Silverman said. “Apparently, the prosecution, out of a
superabundance of political correctness, has not asked their
witness what is going on. They think it is incorrect to ask her
about her sex life. They are doing her no favors by avoiding the
subject. I don’t see how or why a prosecutor would go forward if
that came in.”
Recent events show how brutally effective the defense has
become. They’ve controlled the clock since the second day of
Bryant’s preliminary hearing, when Mackey repeatedly named the
accuser in open court and claimed the woman had sex with others
around the time of the alleged rape.
The defense has treated the accuser and the prosecution like
helpless harp seals ever since. And the bludgeoning will only
get worse once the accuser is forced to face off against Team
Kobe, while the dapper NBA star sits at the defense table and
stares her down.
The “Second Penis Theory”
If you think the Romans blooded Jesus back in the day, well, you
haven’t seen anything yet. They’re dusting off the hot seat for
the pretty blonde, who claims Bryant forced her over a chair and
gave her the business in a swanky Cordillera hotel room last
summer. And when this verbal beating is done, there will be no
resurrection.
The girl, whose alleged emotional troubles have been well
chronicled in the press, will be forced to answer intensely
personal questions — queries prurient enough to make Larry Flint
blush.
“It will be X-rated,” Silverman said. “Not only will she be
asked about other sex acts with other men, but she’s going to be
asked about the foreplay that preceded those sex acts. She’ll be
asked about sexual positions and other things that no normal
person would want to answer, let alone under oath.”
It’s proper under Colorado law. The state’s rape shield law does
provide some protection for alleged victims of sexual assault.
But the law — designed to prevent attorneys from probing into a
victim’s sexual past — has loopholes. Team Kobe has found every
one of them. The defense wants to know all about the woman’s
sexual proclivities. They’ve painted her as a slut and a nut
from day one. The rough stuff is required because the defense
contends injuries she suffered during the alleged rape came from
another dalliance.
Call it the Second Penis Theory if you like, but the tactic is
brilliant. “Evidence that the accuser engaged in multiple acts
of sexual intercourse in the 72 hours preceding the sexual
assault physical examination is relevant to the prosecution’s
expert opinion that the minor abrasions observed on the accuser
are ‘diagnostic’ of sexual assault,” Team Kobe stated in a legal
brief.
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