You had to see and hear it to believe it. On May 27, 2004, the media in the courtroom kept looking at each other and shaking their heads as Eagle County DA Mark Hurlbert spoke. It was strange to hear a prosecutor say the things he said and do the things he's done. Normally, prosecutors try to do the right thing. After all, a prosecutor has the responsibility of a minister of justice and not simply that of an advocate.
It seems as if the Eagle County DA has lost all perspective in this regard. Nothing better illustrates this point than events surrounding the issue of text messaging disclosure.It seems that both sides realized early on that the alleged victim and her ex-boyfriend, Matt Herr, had exchanged recorded AT&T text messages about her encounter with Kobe Bryant within a few hours of the alleged rape on June 30, 2003. Wouldn't it be important and interesting to find out what was communicated? Wouldn't that facilitate knowledge of the truth? Can that truth be obtained?The answer is absolutely yes, but only by a prosecutor. All the government lawyer has to do is ask. The federal Electronics Communication Privacy Act provides that "A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication, that is in electronic storage in an electronic communications system." All the government prosecutor has to do is ask. The Eagle County DA refused to even ask.A prosecutor's job is to do justice. The best definition of justice is the truth. Why would the Eagle County DA not make this request? Instead, the defense had to move the Court for the right to see these text messages -- a motion which was granted after argument and over objection by the Court this past Thursday.Judge Ruckriegle will look at these text messages which must be turned over by AT&T and he will release to the parties those that are arguably relevant.This discovery of these text messages should have been accomplished by the Eagle County DA within a week or two of June 30, 2003 and before a filing decision was made. If the text messages are incriminating against Kobe Bryant, the DA's case is strengthened. If the messages are neutral, it is much ado about nothing. However, if the messages are exculpatory and contradict the alleged victim's version, then maybe a wrongful filing could have been avoided.The defense is probably not guessing regarding the contents of these text messages. A swarm of defense investigators have descended on Eagle and elsewhere talking to every associate of the alleged victim and her ex-boyfriend. Team Kobe is fishing but most likely not in the dark.This voice message issue was just one of the major issues discussed at the last court session. DNA was at the center of the debate. On the eve of the Thursday hearing, there was a buzz about this report by MSNBC reporter Michelle Hoflund on the May 26, 2004 Abrams Report:
Detectives -- or sources tell me that defense believes that this is a big break for them, and that it's for two reasons. First of all, that they may be able to show that the accuser lied to detectives, No. 1, and that No. 2, they believe that she has acted in a way that is not typical behavior of somebody who has been raped.Sources close to the investigation tell NBC News that the state crime lab's own test results show Kobe's accuser had sex with somebody other than Kobe Bryant in the hours before she arrived at the hospital for her rape exam -- lab test results not just from the underwear that she wore to the hospital, because we've already heard a little bit about that over the past few months, but also, DNA evidence from her own body.Now, let me step back a little bit. Back at the preliminary hearing last fall, it was revealed that the state crime lab had test results showing that in the underwear that she wore to the hospital, they found DNA evidence -- semen and sperm from somebody other than Kobe Bryant. ... Then after that, there was a big battle between the defense and the prosecution about getting those test results done on that underwear. But then after that Kobe's accuser's attorney said that, "You know what? There is a simple explanation for all of this."The 19-year-old simply mistakenly put on a dirty pair of underwear after she left Kobe Bryant's hotel room when she says she was raped and before she got to the hospital. But what our sources tell us is that just does not make sense once you look at the scientific evidence. That what they found is sperm and semen inside the woman's body, and that this is fresh, and that they believe that this will prove that she had sex, according to what the defense hopes to prove, from the time she left Kobe's hotel room and the time that she got to the hospital the next day.Now, two reasons -- big reasons why this is significant is that the defense hopes that this will prove that this is not how rape -- people who are raped -- act, No. 1. And No. 2, that she lied to detectives. Now, she told detectives in an interview that she had not had sex with anyone except about three or four days prior to the time that she had been with Kobe Bryant.In the preliminary hearing she said -- quote -- Detective Winters -- this is Pam Mackey -- asks, when was the last time that she had consensual sex? And she suggests then -- Pam Mackey asks the detective and she has recently corrected that to be very specific as of June 28. Is that correct? And he said, "I'm not certain about the date, but I recall it's either the 27th or 28th, somewhere in that area" and that would be about three days before her encounter with Kobe Bryant.
- May 25, 2004: Craig's Court: Strength In Numbers, Weakness Without
- May 11, 2004: Craig's Court: A Weird Event In A Strange Case
- May 11, 2004: Craig's Court: A Weird Event In A Strange Case
- April 29, 2004: Craig's Court: Almost Winning Time
- April 6, 2004: Craig's Court: The Defense Fires Back
- March 30, 2004: Craig's Court: Names and Appearances
- March 26, 2004: Craig's Court: Misreading Or Misleading Or Retreating?
- March 17, 2004: Craig's Court: Fishing In The Right Spots
- March 12, 2004: Craig's Court: DA Calls Time Out -- What Is Going To Happen Now
- March 2, 2004: Craig's Court: Are Those White Flags? 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