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:
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.
"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."
"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."
- March 1, 2004: Craig's Court: Role ReversalFebruary 4, 2004: Craig's Court: You Are Free To GoFebruary 2, 2004: Craig's Court: I Call Them As I See ThemJanuary 31, 2004: Craig's Court: Tabloid Time -- The Shapiro FactorJanuary 23, 2004: Craig's Court: OJ, JonBenet, DNA and Lotsa Delays
- January 13, 2004: Craig's Court: Relevant Evidence Or Character Assassination?
- January 9, 2004: Craig's Court: Kobe's Body Is Different Now
- December 29, 2003: Craig's Court: How Slow Can You Go? December 15, 2003: Craig's Court: The Good, The Bad and The UglyDecember 8, 2003: Craig's Court: A Tale Of Two ShirtsNovember 21, 2003: Craig's Court: The Wacko Jacko Impact On Kobe BryantNovember 20, 2003: Craig's Court: 101 Dull MotionsNovember 19, 2003: Craig's Court: Probable Cause Equals HIV TestingNovember 18, 2003: Craig's Court: The Invitee and the Intruder
- November 13, 2003: Craig's Court: Non-Destructive Stalling In Kobe Bryant's Case Nov. 12, 2003: Craig's Court: A Lawyer's Blog On The Bryant Case