Craig's Court: Non-Destructive Stalling In Kobe Bryant's Case

Nov. 13, 2003

Coach Dean Smith of North Carolina was renowned for his four-corner offense. Four players would set up in the outer reaches of the offensive end of the basketball court while the best dribbler ran around in an effort to keep the ball away from the opponents. No effort was made to score. It was stall ball. It was so tedious that college basketball instituted a shot clock. Few people like to watch slow play.

The Kobe Bryant court case has recently slowed to a glacial pace. The Nov. 13 arraignment hearing was tedious and relatively uneventful. No plea was even entered. Who is responsible for the slow pace of play? Team Kobe claimed it was only following the rules of District Judge Terry Ruckriegle, who apparently does not like "not guilty" pleas when a defendant first appears in his District Court.

"We have decided to follow the court's usual procedure and not enter a plea as of today," defense attorney Pamela Mackey said.

Why would a chief judge have a policy like that? It could be much like the reason that there are now metered lights on the entrance ramps to Interstate 25. Too many cars too fast clog a highway. "Not guilty" pleas put cases on the fast judicial highway. Defendant's speedy trial rights start to run when they say "not guilty" and the state needs to hold a trial within six months or set the defendant free. If you can put off "not guilty" pleas, some cases simply go away by plea bargains or dismissals, and the judicial highway becomes less crowded.

Dozens of motions will need to be decided before this trial occurs. Some motions have been carried over from County Court. Lots of others will be filed within 30 days. They will take considerable time to resolve.

One new and interesting issue emerged in District Court discussions. Team Kobe expressed concern that the government may destroy critical evidence in the process of scientific testing. That could be a due process violation. We know of several small items of evidence which could be subjected to (further) testing -- a Caucasian pubic hair, stains on the white underwear worn during her encounter with Kobe, stains on the yellow underwear she wore to Valley View Hospital for the post-rape exam.

Failure to allow the defense to participate in destructive forensic testing can lead to sanctions on the prosecution, including suppression and possible dismissal. Here is some Colorado law regarding the issue of destructive forensic testing:

    Whether evidence resulting from such destructive testing should be suppressed depends upon the existence of three factors: (1) that the destructive testing occurred without giving the defendant either an opportunity to participate in the testing process or without making available to the defendant, upon his request, a portion of the sample, in order that he might perform his own tests; (2) that defendant is able to demonstrate that the evidence he sought to produce as a result of the testing process would be favorable to his case; and (3) that such evidence would be material and admissible. Only if all three factors are present is there a due process violation.

District Attorney Mark Hurlbert acted resistive to this whole concept of the defense having anything to do with scientific testing. Here is what I think the prosecution reasoning is. Tests of the hair and underwear are only designed to identify other men with whom the alleged victim had a sexual encounter. The DA believes these tests should not be performed at all by anyone.

Using Colorado's Rape Shield law and the standards set forth above, the DA will argue that none of this information is material or admissible. If the DA wanted to know who deposited that mystery stain (not Kobe's) that ended up on her yellow underwear, all they would have to do is ask her. They apparently won't because they think it is irrelevant.

The referee who will decide relevancy issues, Judge Ruckriegle, did not seem happy with the DA's position. Perhaps the DA was also taking this stance for the benefit of the very secretive Colorado Bureau of Investigation. CBI does not like defense experts in their facility looking over their shoulders. CBI is under-funded, undermanned and overworked. They have some serious backlogs. Ruckriegle told the DA to tell CBI to prioritize this case and share with the defense.

Why did Team Kobe go along with this judicial stall ball? First of all, nobody wants to make the referee/judge mad -- especially at the start of the game. Second, Kobe has his freedom now and following a trial, that freedom is not certain. Finally, Kobe has learned to live with this dark cloud over his head. Less than 10 hours before the arraignment, Kobe had helped lead the Lakers to another NBA victory. One ideal scenario for Team Kobe is for the Lakers to win the NBA crown in late June and the trial of this "hero" to start shortly thereafter.

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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