Craig's Court: Are Those White Flags?

Posted March 2, 2004

Are those white flags I see in the air over at the Eagle County Justice Center? Consider the following occurrences this week. The Globe, a worldwide tabloid, has on its cover Kobe Bryant's accuser photographed while partying in a highly sexual way with an apparent new male acquaintance in a Canadian nightclub within a couple weeks of leveling her charge against the L.A. Laker. This can properly be characterized as unusual behavior by a true rape victim.

This behavior seems downright normal, however, when compared to the way that this Eagle teenager allegedly acted during the half day that transpired immediately after she was allegedly raped by Kobe Bryant.

In court filings and in open court argument, Team Kobe lawyers have asserted that the complaining witness had sex with another man after Kobe and before she went to the cops. Swabs taken during the rape kit exam allegedly show the presence of semen which is not that of the basketball star. We had already heard about the strange semen and pubic hair in her yellow knit underwear.

Hal Haddon said to Judge Ruckriegle on March 1, "We have compelling needs to examine these items of evidence (her underwear), especially in light of the results last week."

"Tests found three of the swabs of semen were not Mr. Bryant's," he said.

According to what was reported on the Abrams Report on MSNBC where I was a guest today, some of the non-Kobe semen was recovered from the alleged victim's upper thigh and vagina during the July 1, 2003 exam at Valley View Hospital. The prosecution's explanation for the non-Kobe semen in the yellow knit underwear and on her thigh and in her vagina is that it all comes from her putting on old soiled underwear before going to the hospital.

Is that possible? Maybe, as regards the stain on the underwear. But how does dried semen get transferred from underwear to the thigh? And into her vagina? Would not forensic science be able to tell the difference between a dripping and a transfer?

The whole prosecution explanation is farfetched at best. Few people put on dirty underwear. Fewer people put on dirty underwear before going to the hospital. Prosecutors are supposed to rely on reasonable inferences.

A clear line in the sand was drawn today. Krista Flanagan, the taxpayer-paid spokeswoman for DA Mark Hurlbert, handed out a statement released by John Clune, attorney for the alleged victim. It read as follows:

    "The claims that the victim in this case had any sexual contact with anyone within 15 hours after being assaulted by Mr. Bryant are patently false. Anyone trying to prove otherwise will be chasing ghosts. The victim has confidence that the judge in this case will appropriately resolve these 'rape shield' issues and that the focus of this trial will remain on the conduct of the defendant. No further comment will be made at this time."

Either this woman had sex with another man after Bryant and before she went to the cops or she did not. There is no middle ground to this debate. Whoever can establish the other side is lying will be a big winner and the loser will pay a big price. If sex after Kobe occurred, two people were likely the only eyewitnesses. I doubt that any lawyer was there.

What might resolve the issue? Forensic science. I spoke today with Dr. Cyril Wecht, the famed forensic pathologist from Pittsburgh. He told me it is possible that if the vaginal swabs were properly collected and stored, a trained scientist might observe that the non-Kobe spermatozoa retained anatomical integrity indicating a recent deposit. The sperm's motility or lack thereof might offer further clues.

What is the propriety of the DA's spokesperson being the conduit of this press release today? The court's gag order makes clear that any attorneys participating in the litigation are not supposed to be making extra-judicial statements to the press. The alleged victim's attorneys have participated many times in this litigation. Judge Ruckriegle will either have to react or his gag order means little.

Why this desperation move by the victim's counsel? Could it be we are close to the end? It was up to me to signal the possible death throes of this case in this morning's Rocky Mountain News. What were remarkable are the quotations that followed mine.

    "If this woman really had sex with somebody between the time she was with Kobe Bryant and the time that she went to the cops, any reasonable person would have to rethink the charge of rape," said former Denver prosecutor and legal analyst Craig Silverman.

    "If that's true, it's over," said former Denver District Attorney Norm Early, who attended Monday's pretrial motions hearing in Bryant's sexual assault case.

    "How are you going to prosecute an assault case where someone is having sex 15 hours later?" he asked. "It's going to be very difficult."

    But Cynthia Stone, a spokeswoman for the Colorado Coalition Against Sexual Assault, wasn't so sure.

    "Even if this stuff is brought in and allowed as evidence, that doesn't mean it's fact," said Stone. "It only means that it can be put to the jury, for the jury to decide if it's important."

    She acknowledged that consensual sex 15 hours after rape isn't conduct that most people would consider normal, but added, "Each individual victim of sexual assault is going to deal with things in a different way."

Norm Early is a virtual partner on the Kobe Bryant prosecution team. He has been identified as such by various newspapers and is known to have sources within the Eagle County DA's Office. A staunch victims advocate, it was amazing to see Norm Early start to jump off the DA train. Could he be sensing an imminent wreck?

Now, as this is written on the evening of March 2, 2004, further evidence of a prosecution in disarray is apparent. The Eagle County DA is taking an appeal on the various rape shield rulings he does not like.

This prosecution voyage to the Colorado Supreme Court will not likely end well for Mark Hurlbert. What will happen when the state high court requires this young woman to answer under oath all sorts of hard questions?

Could it be that the prosecution and the accuser are never going to allow the truth to be told? Is it possible that Team Kobe, Judge Ruckriegle, the Colorado Supreme Court, and the media will be blamed for re-victimizing the victim? Could the white flag of surrender be raised by Mark Hurlbert?

What does it take to dismiss the case against Kobe Bryant? The same thing it took to charge him -- the signature of Mark Hurlbert on a piece of paper. It may happen.

PERSONAL POSTSCRIPT

I have a lot of fun in Eagle. I go from my primary obligations to Channel 7 and KOA to talk with reporters from newspapers and news services around the world. Then there are the national cable shows. I love the adrenaline rush of national TV -- especially live. Sometimes it goes really well -- other times, not that great. Just as I do on Channel 7 and in this column, I like to analyze cases and the law and express my views.

Never have I been burned the way I was yesterday on national television. My friends at CNN (Cable News Network) asked me to tape some comments for their evening news shows. That is my pleasure. I had acquaintances approach me at a party a couple weeks ago to say they saw me on CNN while they were cruising off the coast of Tanzania. Their signal goes slightly further than KMGH. It is the really big leagues.

I also enjoy talking with CNN's Kobe Bryant reporter Gary Tuchman. He is smart, nice and asks good questions. I marched off to the CNN set on the front row of Camp Kobe and gave them a good five or 10 minutes of sound bites. About 15 minutes later, senior CNN producer Michael Phelan found me again to tell me that there had been a video problem and that CNN wanted me to return to be re-interviewed. Of course, I agreed. More questions. More answers. Thanks all around.

At 5:45 a.m. this morning, I received my wake-up call at my Eagle hotel room. I had a 6:00 a.m. hit on KOA's Colorado Morning News. It was hard to open my eyes. Not just because it was early. My eyes hurt. It reminded me of my pre-Lasik days when I wore contact lenses too long or fell asleep with them in. Fortunately, I can do radio with my eyes closed. That is what I did.

I could not figure out what was wrong with me. My forehead also hurt and when I took a shower and shampooed, my hair in the front of my head felt funny, like its consistency had changed overnight. Maybe I was allergic to the pillows in the room. I got my eyes open enough to drive the 126 miles back to my Denver law office. On the way, I received a call which solved the mystery.

It was Michael Phelan from CNN. He asked me if my eyes were feeling funny today. How did he know that? Does CNN stand for the Clairvoyant News Network? Hardly. It seems that Gary Tuchman had gone for emergency medical treatment about six hours before I awoke. Gary's eyes were swollen and aching. The source of the problem was discovered.

CNN had been using some powerful network lighting without the required filter. All of us who did daytime interviews on that set had gotten badly burned. This senior CNN producer from Atlanta explained how the filter must have gotten damaged during transport. Wear sunglasses, he advised. See your doctor for treatment and medical prescriptions. I already was wearing sunglasses. I went to see my primary care physician, Dr. David Mellman (Peter Forsberg's doctor). I got me some serious prescription eye drops.

Tonight, my face is really red. My hair is singed. My eyes still hurt. I have purchased and used my first ever tub of aloe vera lotion. When you next hear about the pressure of being under the hot lights, think about what happened to me and poor Gary Tuchman. I really respect and admire the integrity of Michael Phelan for calling me and telling me about his company's mistake. CNN (the Charred Noggin Network) should be proud of him.

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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