Craig's Court: Almost Winning Time

Posted April 28, 2004

There are some basketball stars that excel during the first three quarters of games. Their scoring averages are high but their teams don't necessarily win. Individual successes are not nearly as important as winning at the right time. Veteran professional ballplayers even have a name for the critical moments when the game hangs in the balance -- winning time.

Kobe Bryant once again demonstrated his ability to come through during winning time in last Sunday's game against Houston in game four of the Lakers' playoff series. For the first part of the game, Bryant failed a lot more than he succeeded. However, in overtime, he hit crucial baskets to lead his team to victory.

Last week, Team Kobe lost its effort to establish a medical waiver by the alleged victim. You will recall the defense argument that the accuser had waived her right to medical privacy with respect to (2-23-03 and 5-30-03) purported suicide attempts/overdoses by speaking to her mother and others about these episodes. No way, said Judge Ruckriegle. This kind of waiver needs to be explicit.

Accordingly, doctor/patient privilege will preclude the defense from seeing her private medical records. Of course, we know that through inadvertence, Valley View Hospital gift wrapped to the defense medical records concerning the May 30, 2003 purported suicide attempt/overdose that occurred in Eagle.

The Denver newspapers played this first substantive court ruling up big. In huge front page font, the Rocky Mountain News had the following headline, "KOBE DA PREVAILS." It was not till the end of the story that you could read a less sensational quotation from yours truly, "It would have been shocking if the Court ruled the other way."

Team Kobe could never have expected to win on this patient/doctor issue. To do so, they would have had to show that this young lady told her mother and/or her friends that she said specifically this to her doctor and her doctor told her specifically that in return. That is not the way human conversations normally take place.

It is ironic that the same Colorado case which gave the defense a right to a hearing, People v. Sisneros, also makes clear how difficult it is to overcome a doctor/patient privilege. But look all that Team Kobe gained in the process. They were able to question under oath the alleged victim's mother and her friends and these are people who otherwise would not have likely spoken to the defense.

The big "winning time" motions have been litigated during the last few days and during sessions held in March. The Motion to Suppress and the Rape Shield Motion are critical to the success of the prosecution. This important litigation will continue behind closed doors during the second week of May.

If the prosecution loses one or the other of these motions, its case will be in serious trouble. Expect an appeal by the prosecution if that occurs. The Colorado Supreme Court has already rejected one appeal from the prosecution but that will not deter the DA from trying again.

No one knows for sure how the Rape Shield hearing is going. We do know that right after the alleged victim testified, Kobe Bryant flew back to California and scored 36 points against the Sacramento Kings. We know that the next day, the alleged victim's attorney submitted their motion for a swift resolution of the proceedings along with a letter from the accuser's mother telling the Court what a hellish process that she and her family have been through.

Speaking of the alleged victim's mother, she and her husband were center stage at a victim's rights rally in Denver on April 19, 2004. It was an interesting choice given the corresponding fifth anniversary of the Columbine Massacre and the ninth anniversary of the Oklahoma City Bombing which had two trials here in Denver.

Lots of proven victims exist throughout Colorado who might have served as more appropriate spokespersons for victim's rights.

Who showed up in Denver with the accuser's mom and dad? Eagle County DA Mark Hurlbert and Eagle DA spokesperson Krista Flanagan. Lead Kobe Bryant newspaper reporters from the Post and the News covered the story.

Was having Kobe Bryant's alleged victim’s mother as a center stage speaker an attempt to boost this Eagle County prosecution?

Another interesting aspect of this Colorado victim's rights gathering continued with the presence of Patricia Bowman. This is the woman who claimed that William Kennedy Smith raped her. The fact that the Florida jury unanimously voted Not Guilty apparently deters neither Ms. Bowman nor Colorado prosecutors from proclaiming her victimization.

Speaking of not guilty, we now know that Kobe Bryant will enter his Not Guilty plea that same second week of May. As for how the resumption of these important motions affected Mr. Bryant, he tossed down 31 points after flying back to LA to knock the Houston Rockets and Yao Ming out of the playoffs.

After the game, the young Lakers superstar and accused rapist engaged in some positive public relations of his own. He talked about how God got him through this day.

Throughout the press conference, Kobe and Vanessa Bryant's beautiful young daughter sat on his lap. The trial of this case is likely to occur this coming September. That will be winning time.

Craig Silverman is a legal analyst for 7NEWS. He will be contributing his thoughts on the Kobe Bryant case in the months to come. He works for the downtown Denver law firm of Silverman and Olivas, P.C., which you can contact through their Web site or by calling (303) 595-0529. You can read Craig's bio here.

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