With Judge Ruckriegle's long awaited rape shield ruling, lots of observers have suggested that this case is on the verge of settlement. After Friday's ruling, it would be shocking if Kobe Bryant pleaded guilty to a crime involving any kind of felony or sex assault designation. A civil settlement that makes the criminal case go away makes a lot of sense but has some serious complications.
We know from what Hal Haddon said in open court that something Kobe Bryant said to the cops at Cordillera is so embarrassing that its introduction will change the way we think about the international basketball star. Now, that statement which the defense tried hard to suppress has been found to have been constitutionally obtained. Add to that the humiliation of adultery and sordid sex with a stranger being hugely publicized.Even if Kobe Bryant wins the trial, he will emerge a loser in lots of ways. Can he survive such public degradation? Look at the reception received tonight by ex-President Bill Clinton at the Democratic convention.It was not too long ago when Bill Clinton committed history's most publicized adultery including specifics of squalid sex included in the inserts of our local papers. The Starr Report and the impeachment which followed made one wonder whether Bill Clinton could ever again emerge in public. Wonder no more.Kobe Bryant can and would survive the embarrassment of a trial which ends in an acquittal. It is less clear if his marriage can survive this ordeal. But why go through it if it is not necessary? Kobe Bryant just signed a contract to play seven years of basketball for $136 million. He would not miss a small fraction of that.Here is the trouble with the civil settlement idea. First, there is the Michael Jackson problem. Who believed the King of Pop did not commit some sexual misconduct back in 1993 when he settled out of court with an alleged victim?Second, how does the deal get done? It would be unethical for Team Kobe or the prosecution to make the first move. In the law, criminal lawyers know that it is unethical to trade out criminal charges for money. The only one who can realistically initiate such discussions is the alleged victim.There has been no indication that she has any willingness to do so. The strongest aspect of the prosecution's case up 'till now has been the accuser's willingness to go forward in the face of unrelenting pressure. That might be explained by the fact that she was truly and forcibly raped by Kobe Bryant on June 30, 2003. It is my experience that true rape victims first and foremost want the perpetrator to be convicted and incarcerated.I was not in Room 35 at Cordillera on the evening of June 30, 2003. As such, I do not know whether Kobe Bryant raped this 19 year old Eagle woman. I was not with this alleged victim immediately afterward during the half a day before the cops were called to her parents' Eagle home. Accordingly, I do not know if she had sex with some other man during that intervening time.However, I have been in Eagle court for every substantive open session. I have tried to read on the Colorado State Judicial Web site every publicly posted document. I have also read thousands of articles about this Kobe Bryant case printed by reputable press organizations.At the preliminary hearing, I was there when Eagle County Detective Doug Winters testified that the alleged victim showed up on July 1, 2003 at Valley View Hospital wearing yellow knit underwear that were stained by semen that did not emanate from Kobe Bryant. These were not the same white panties that she told the cops she wore when the sexual act by Kobe Bryant occurred.Published reports by MSNBC, the Rocky Mountain News, the LA Times, and others have stated that swabbing of the alleged victim revealed the presence of fresh non-Kobe Bryant semen in her vaginal area.Let's call this as yet unidentified sperm donor John Doe. (Team Kobe efforts to swab the cheeks of ex-boyfriend Matt Herr for DNA were rejected by the trial court.) The only sex within 72 hours that the accuser acknowledged at her rape kit exam was with a man who wore a condom approximately 48 hours before she met Kobe Bryant.We also know that Kobe Bryant was thoroughly examined and swabbed at Valley View Hospital in Glenwood Springs on the early morning of July 2, 2003. Bryant's clothing, including his underwear and the white Nike T-shirt that bore the incriminating blood stain at its bottom, must have been subjected to similar forensic scrutiny by both sides.Wouldn't it be reasonable to expect that Kobe Bryant's body and clothing would also bear the DNA of this fresh non-Kobe Bryant semen? It is like those unfortunate knives that are dipped into containers of ketchup and mustard. The knife will likely emerge at the end of the barbecue with telltale remnants of both condiments. So will any napkin that might have come into contact with the knife.If Kobe Bryant's physical exam or clothing revealed this John Doe DNA, one would have expected the talk of sex after Kobe Bryant but before she went to the cops to have disappeared. The problem for the prosecution of any credible evidence of post-alleged rape sex is it will be inconsistent with the way jurors would expect a true rape victim to act. More than that, it would appear to be inconsistent with what this young woman and her attorney have said on the subject.What we have now is a high stakes soon-to-end game of chicken. If a settlement does not occur before trial, the monetary hopes for the alleged victim will likely go away. If the government gets its rape conviction, that $136 million Kobe Bryant contract disappears. If the case results in acquittal, then most all the embarrassing facts will have been exposed and the complainants civil claim leverage may be reduced to nothing.Will we all witness all this salacious dirty laundry? In a way, it is reminiscent of the mess which confronted this country's 42nd President. When it came to the Starr Report and impeachment, no one thought that the other side would actually go through with it. It happened. We survived. So did Monica Lewinsky. So did Bill Clinton.
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.