Craig's Court: Can Momentum Be Stopped?

Posted June 20, 2004

The Detroit Pistons just clobbered the LA Lakers, winning three straight to walk away with the NBA Championship. After Game Three, the momentum was obvious. Kobe Bryant's heroics in Game Two simply delayed the inevitable. The better team won. They had better strategy and were better coached. They had better teamwork. They wanted it more and it showed. Toward the end, the Laker players started complaining about the refereeing, but they should have instead been looking at themselves and the strength of their team.

Since last Kobe Bryant was in court in Eagle, his Colorado legal team has fared much better than his Lakers. Team Kobe has won three straight motions and its momentum is obvious. As of now, it clearly appears as if the defense has better strategy, better teamwork, better lawyers and they want it more. The team complaining about the judging is the prosecution but in fact, they should instead look at themselves and the strength of its case and team.

Victory number one this pat month was having the judge rule Team Kobe's way regarding how the accuser would be referred to in court. In a remarkable ruling, Judge Ruckriegle found that neither side should refer to the accuser as the victim until that fact has been established by evidence in a court of law. The logic of that conclusion is clear, but the prosecution and victims' rights organizations (with amicus briefs) fought this outcome tooth and nail. So then why was this ruling remarkable? Because in an average case, such a motion would have likely been tossed in the waste basket. Judges and lawyers are creatures of habit. Accusers have always been called victims. Accused people are called defendants.

Could it be that Judge Ruckriegle took this issue so seriously in part based on what he has recently seen and heard in this case? Is it a coincidence that his "victim" ruling came shortly after MSNBC's bombshell report that this young lady had "fresh" non-Kobe Bryant semen in and on her body when she went for her rape kit exam on July 1, 2003? Judge Ruckriegle had better information about this subject than MSNBC. The judge saw and understood the reasons for the DA's sealed written effort to re-test some unhelpful DNA results. Did the judge hear the accuser repeat under oath in closed session her claim to nurse examiners that the only sex she had in the 72 hours prior to the exam was with Kobe Bryant and a man who wore a condom two days prior? Could it be that the judge is having serious doubts about this young woman's true victim status?

Thankfully, gone forever from this case is the ridiculous and unprecedented rule announced by the Eagle County Court Judge just prior to the preliminary hearing which precluded attorneys and witnesses from referring to this adult accuser by her given name. Judge Ruckriegle has specifically told the world that such full name references will be proper at trial. It happens every day in courtrooms around the country. Victims, including sexual assault victims, are referred to by name. Why then do we not read or hear in the mainstream media about alleged rape victim's names? Because responsible journalists are following their own ethics.

So many times in this case, people have accused Bryant's attorney Pamela Mackey of violating the rape shield law when she said the woman's name in county court. The rape shield law does not address this subject in the slightest. (It is interesting to contemplate how broadcasters will handle this if there are cameras in the courtroom. Will a seven second delay be enough? What about lip readers?)

Another thing that Judge Ruckriegle has seen that could now cast real doubt on this woman's victim status are the exchange of AT&T text messages which were produced for his private inspection. We know that this accuser text messaged her ex-boyfriend within a couple hours of the late night June 30, 2003 encounter with Kobe Bryant. Her ex, Matthew Herr, text messaged back. Within a short while, further text messages were flying back and forth, now also involving Matthew Herr's more current girlfriend. AT&T was put on notice last summer that the defense wanted these messages preserved for production. As discussed in my last column, the defense seems to know what it was looking for and was glad to get it. The DA felt just the opposite way.

Now, we have confirmation of a sort regarding how significant these text messages might be. If these text messages were innocuous, then Judge Ruckriegle would have tossed them in the trash. Instead, he has turned them over to both sides having found they were relevant for discovery. Could it be that part of Matt Herr's reluctance to provide his own DNA could have something to do with the inevitable bad feelings of a current girlfriend if she were to learn of a sexual encounter between her boyfriend and his ex? The text messages may shed light on this and the overall credibility of the accuser. This is the second of the most recent Team Kobe victories.

Victory number three was the recent decision of the DA to abandon plans to re-test the DNA. Clearly, this means that the DA is going to have to live with some scientific results that he did not like. Why did the DA change his mind? Because the prosecution was facing likely scolding and sanctions for violating his promise to allow the defense to be present when the re-testing was done. Instead of just admitting his mistake of making a commitment which his retained lab could not, or would not, fulfill, the DA blamed the Court and opposing counsel before folding this hand. Look at this responsive motion casting blame at everybody but the prosecution.

Shortly after this written attack, the prosecution retreated, claiming it had this overriding keen interest in a swift resolution of the trial. Aren't the other better explanations that hard science should not change from one qualified lab to the next. This was a waste of taxpayers' money and it would be interesting to see what was spent on this false start effort at re-testing. The DA dropped this re-testing for the same reason Karl Malone and Gary Payton rarely played in the fourth quarter against the Pistons. They were getting their butts kicked and embarrassed.

Oh yes. There was that rape shield ruling that decided that the law was constitutional. This prosecution win was as inevitable and expected as at least one Laker home victory. Even in that ruling, the Court concluded that there is a double standard in the law, but there was no harm here to Kobe Bryant given that the prosecution had no evidence to admit of other sexual misconduct on his part. The reason that the law is constitutional is because it contains exceptions. Team Kobe will soon find out if they have succeeded in convincing the judge that one or more exceptions apply here.

The momentum is clearly on the side of Team Kobe going into the critical last rounds of motions hearings. The trial will likely be set this week for late summer. What can the DA do to turn momentum around? For that, he might look to the LA Lakers for guidance. After suffering these three straight staggering defeats, the basketball team is being reshuffled. Coach Phil Jackson will no longer be leading the squad. Other members of the team are going to be gone quite soon. There has been an admission of weakness that will not be further tolerated. Will such a shake-up occur on the DA's team or will they continue to go with what they have got? Stay tuned.

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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