Craig's Court: Credibility Lost

Posted May 31, 2004

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.

Sure enough, the next morning, open Court started with the DA's effort to re-test at a private firm some DNA results he apparently does not like. It sure seemed like it had something to do with that MSNBC report. Regardless, it was another unwelcome move by the DA leading to more delay.

The Eagle County DA, the same guy who demanded a swift resolution of this case a couple months ago, now asked the Court if it would be all right for the government to save some money by getting the re-test done in five to six weeks as opposed to the more expensive (by 50 percent) expedited testing. Mark Hurlbert made some lame speech about trying to save his constituents' money before the judge told him to get his show on the road and order the expedited test.

Speaking of delays, the prosecutor created another big one when he failed to meet some court imposed deadlines. When you endorse an expert in court, you have to set forth what it is your experts are essentially going to say so that the other side can prepare and the court can intervene if the subject matter is clearly out of bounds.

When the prosecution endorsed celebrity rebuttal experts Dr. Henry Lee and Dr. Michael Baden, their disclosure said only that these two TV stars would rebut what the defense experts said about DNA results, the jaw bruise, the posterior fourchette injury, the crime scene investigation, etc.

That was incomplete and inadequate and accordingly, the defense moved to strike Dr. Lee and Dr. Baden from testifying. You normally have 15 days to respond to a motion of this kind. The prosecution failed to respond and accordingly, Judge Ruckriegle granted the defense motion and it appeared that Drs. Lee and Baden would be precluded from testifying.

All of this took Mark Hurlbert by surprise. We didn't know about this deadline, he told the judge. Our disclosures were adequate. "How so?" asked Judge Ruckriegle. "Because this is rebuttal," responded Hurlbert. "So what?" was the essential response of the increasingly frustrated judge. "Rebuttal is rebuttal," said the embattled DA.

Somehow, despite this nonsensical argument and no good explanation for the missed deadline to respond, the Court gave the DA more time to get his disclosures right. Some of the detailed expert summaries from these busy and successful experts are now due on June 2, 2004. Let's see if the DA can get this kind of detailed work done by Drs. Lee and Baden over the Memorial Day weekend.

One piece of scientific work was accomplished last week. Bobby "the bellboy" Pietrack provided his DNA for testing. This goes back to those mystery stains that are definitely on her yellow knit panties and now possibly part of the "fresh" non-Kobe Bryant semen found during the rape kit internal swabbing. On the morning of May 27, 2004, the Vail Daily broke the story. That morning in Court, the story was confirmed by the DA.

Of course, the second man who's DNA has been requested for testing continues to resist the request. Matt Herr, the ex-boyfriend of the alleged victim, continues to fight through the efforts of his attorney.

"Whether my client had consensual sex or not with the alleged victim cannot matter," attorney Keith Tooley said as Bryant and the woman's parents looked on. "My client's DNA cannot shed any light" on the question of whether the woman consented to sex with Bryant.

I will tell you how this Matt Herrs (sorry). After all, if Herr had sex with the alleged victim shortly after (or even soon before) Kobe Bryant, then he is a witness to the injury which has caused this case to go forward. But more than that, it is safe to now assume that Herr and the alleged victim have testified regarding these subjects in closed court sessions. If they have denied the sexual encounter but science proves otherwise, then their credibility is shot.

The judge did not yet decide this interesting constitutional issue but the inference from Herr's refusal and Pietrack's agreement can and will be made. It was revealed in court that Herr exchanged not only text messages with his ex-girlfriend but also with his current girlfriend in the couple hours following the alleged crime.

Could it be that his reluctance to get DNA tested might have something to do with maintaining his current relationship? With the soon to be disclosed text messages, this case may go from a He Said - She Said to a He Said-She Said-Herr Said (sorry again).

What was DA Mark Hurlbert's position on this DNA testing which might help reveal important truth? He would just as soon not know. He sides with Tooley and told the court he thought the DNA test would be an invasion of Herr's fourth amendment constitutional rights. How invasive is it to give DNA? Not very. It takes a minute or two as swabs are run through your (facial) cheeks.

In other evidence of prosecutorial ineptitude, after first resisting the defense endorsement of crime scene investigation experts, and filing a brief raising his objections, and then reviewing Team Kobe's response, the DA gave up on his argument.

This expert testimony will be critical in a case of this kind demonstrating not only Eagle County police incompetence, but also bias against Kobe Bryant and a lack of credibility. After the events of the last week, the same can be said of the Eagle County DA.

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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