Craig's Court: Misreading Or Misleading Or Retreating?

Posted March 25, 2004

What was John Clune, attorney for the alleged victim of Kobe Bryant, doing when he just this afternoon filed his Motion entitled Victim's Request for Swift Resolution of Pending motions and Request for Trial Setting?"

The Motion had attached a heartfelt letter from the accuser's mom telling the court how hard life has been since June 30, 2003 for her daughter. The request was for an accelerated trial setting. Colorado’s Victim's Rights statute was cited which provides as follows:

    The right to be assured that in any criminal proceeding the court, the prosecutor, and other law enforcement officials will take appropriate action to achieve a swift and fair resolution of the proceedings

What does Colorado appellate law say on what this statute means? Nothing. There have been no appellate cases explaining this right. What happens if the victim's right to a swift resolution conflicts with the defendant's speedy trial right? Nobody knows.

To advance his argument that the court should speed up the trial on this case, John Clune wrote in words that may come back to haunt him : "Additionally, as the Court is certainly aware, cases involving the commission of an unlawful sexual offense shall take precedence before the court; the court shall hear these cases as soon as possible after they are filed."

Wow! How could the Court have missed that? It is an apparent in-your-face disgrace for Judge Ruckriegle. How could he ignore the clear mandate of Colorado law and let this case creep along so slowly? I'll tell you how. The alleged victim's attorney is either misreading or misleading with respect to applicable Colorado law.

Here is the proof. The statute cited, C.R.S. Section 18-3-411 contains the following language at (4):

    All cases involving the commission of an unlawful sexual offense shall take precedence before the court; the court shall hear these cases as soon as possible after they are filed.

However, before you get to (4), you have to read Section 18-3-411(1) which tells us what section (4) means when it refers to unlawful sexual offenses. THIS PRECEDENCE FOR ACCELLERATING TRIALS ONLY APPLIES TO SEXUAL ASSAULT ON A CHILD CASES:

  • 18-3-411. Sex offenses against children -- unlawful sexual offense defined -- limitation for commencing proceedings--evidence--statutory privilege

      (1) As used in this section, "unlawful sexual offense" means enticement of a child, as described in section 18-3-305, sexual assault, as described in section 18-3-402, when the victim at the time of the commission of the act is a child less than 15 years of age, sexual assault in the first degree, as described in section 18-3-402, as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child less than 15 years of age; sexual assault in the second degree, as described in section 18-3-403(1)(a), (1)(b), (1)(c), (1)(d), (1)(g), or (1)(h), as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child less than 15 years of age, or as described in section 18-3-403(1)(e), as it existed prior to July 1, 2000, when the victim is less than fifteen years of age and the actor is at least four years older than the victim; unlawful sexual contact, as described in section 18-3-404(1)(a), (1)(b), (1)(c), (1)(d), (1)(f), or (1)(g), when the victim at the time of the commission of the act is a child less than 15 years of age; sexual assault in the third degree, as described in section 18-3-404(1)(a), (1)(b), (1)(c), (1)(d), (1)(f), or (1)(g), as it existed prior to July 1, 2000, when the victim at the time of the commission of the act is a child less than 15 years of age; sexual assault on a child, as described in section 18-3-405; sexual assault on a child by one in a position of trust, as described in section 18-3-405.3; aggravated incest, as described in section 18-6-302; trafficking in children, as described in section 18-6-402; sexual exploitation of a child, as described in section 18-6-403; procurement of a child for sexual exploitation, as described in section 18-6-404; indecent exposure, as described in section 18-7-302, soliciting for child prostitution, as described in section 18-7-402; pandering of a child, as described in section 18-7-403; procurement of a child, as described in section 18-7-403.5; keeping a place of child prostitution, as described in section 18-7-404; pimping of a child, as described in section 18-7-405; inducement of child prostitution, as described in section 18-7-405.5; patronizing a prostituted child, as described in section 18-7-406; or criminal attempt, conspiracy, or solicitation to commit any of the acts specified in this subsection (1).

    Was the victim's lawyer misreading or misleading with applicable Colorado law? Whatever the answer, Judge Ruckriegle will certainly not be pleased. This is not a good way to make friends and influence judges.

    No judge likes to have the public misled about his ability to understand and follow the law. Look for the Court to put this back in the face of the offending attorney if and when he gets the opportunity. Right now, it is not even clear that the victim's attorney had the standing to file any such motion.

    So what is this motion really about? It comes on the heels of the rape shield hearing in which the accuser testified yesterday. Nobody but the people inside the courtroom knows how it went. But let's say that it went bad for the prosecution and the alleged victim. What would happen then?

    Judge Ruckriegle would allow, at a minimum, that Team Kobe can put on evidence that Kobe Bryant was the middle man. There would be evidence of the sexual intercourse by another man two days before and evidence of sex with yet another man after Kobe Bryant but before she went to the cops. If that evidence is admissible at trial, then the prosecution and the alleged victim would be wise to start thinking of a graceful way out. Could this "hurry up" filing by the alleged victim's lawyer be an indication of a graceful exit strategy?

    When you are stuck in a long line that is moving slowly, one of several things can be done. You can wait patiently. You can ask to move ahead of other people. You can tell the people controlling the line to hurry up. Or, if none of your efforts to get special precedence work, you can throw your hands up and leave.

    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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