Craig's Court: Role Reversal

Blog Posted March 1, 2004

Having been a prosecutor for 16 years myself, I have a good idea about how that job is supposed to be done. It is not as complicated as you might think. The mission is a simple one. Do justice. Follow the law.

As a criminal defense attorney for the last seven years, I have seen the other side of the fence. Occasionally, clients are innocent and only an acquittal or a dismissal is satisfactory. Lots of other times, defendants are in fact guilty of something and the object is to minimize the consequences of their misconduct. Sometimes, delay becomes a major defense strategy.

In the Kobe Bryant case, it is now March 2004 and no plea has yet been entered on this case filed way back in July of 2003. Indeed, right now, there is no plea in sight. A trial in the case will not occur sooner than the latter part of 2004. Who is responsible for the delay? In largest part, it is the prosecution.

For many months, the District Attorney resisted defense requests to have its expert be present at the Colorado Bureau of Investigation when consumptive testing of forensic evidence occurred. The prosecution adamantly refused to share the physical evidence for examination by defense experts. There was one problem with this strategy. It is contrary to established Colorado law.

In Colorado, prosecutors and defense attorneys must share physical evidence. When push came to shove on the issue at a motions hearing on Feb. 2, 2004, Mark Hurlbert seemed to see the light and the law and withdrew his spurious objection. Or so we thought.

The DA and defense announced in open court on Groundhog Day that the DA had agreed to share. A stipulated order was drafted and signed by the judge. Paragraph 3 of that order provided that all clothing to be analyzed would, following Colorado Bureau of Investigation analysis, be packed off to Technical Associates, the defense crime lab in Southern California.

That is why it was a surprise on March 1, 2004 when the first motion of the day concerned Mark Hurlbert's command that CBI would not share the critical crotch portions of the complaining witness' underwear.

Two pairs of her underwear have been the subject of analysis. First was the purple pair that the alleged victim says she was wearing on June 30, 2003 when she had her sexual encounter with Kobe Bryant. The second pair was the yellow knit panties the accuser had on when she went to Valley View Hospital for the rape kit exam on the afternoon of July 1, 2003. Purple and yellow happen to be the colors of the Los Angeles Lakers.

Increasingly red was the face of Eagle County District Court Judge Tery Ruckriegle as he tried to understand the theory of DA Mark Hurlbert who seemed to violate the clear Court order.

Dr. Elizabeth Johnson, the defense DNA expert, testified as to the refusal of CBI to hand over the underwear crotches when she visited the CBI facility to retrieve them last week. Hurlbert sought to establish on cross examination that this DNA expert could do the testing right there at CBI. One big problem -- that is not what the court order said. Judge Ruckriegle told Mark Hurlbert that his argument was without merit.

District attorneys are generally sticklers for following court orders. DAs are supposed to embrace the truth and deal with it; not run and hide from it. Prosecutors usually abhor delay. All the normal rules for prosecutors were reversed during this hearing on the first day of March. Politically correct protection of alleged victims does not justify such tactics. It is hard to see how this case will end well for prosecutors who fail to play by the rules.

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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