Craig's Court: OJ, JonBenet, DNA and Lotsa Delays

Jan. 23, 2004

For a session where most of us going to Eagle were not sure that we would see anything at all, there was a lot to chew on at after today's Kobe Bryant motions hearing. The courtroom holds about 90 people and only a blind man could ignore the fact that the accused was the only black man there. So it was no surprise that Team Kobe exposed a race card that has always been among the cards dealt them in this case.

Pam Mackey saw her opportunity and she took it. First, Inga Causey, a lawyer for the Victim Resource Center made a blatant political argument about how the William Kennedy Smith case led to a 20 percent reduction in allegations of sexual assaults. Within a minute, Ms. Mackey was on her feet saying the following, "My client stands accused of a very serious crime. There is lots of history about black men being falsely accused of this crime by white women."

The William Kennedy Smith case was an interesting example to bring up. That accused rapist was acquitted and rightfully so from what I saw of the trial on Court TV. I don't doubt Ms. Causey's premise. There can be little doubt that the Kobe Bryant case could lead to rape victims failing to report. Who is at fault for that? Kobe Bryant? His accuser? The defense team? The media? Or is it the D.A. who is only supposed to bring to trial cases that he reasonably believes he can prove to a jury of 12?

One thing is very clear about the Kobe Bryant case. It is not going to trial any time soon. As discussed in prior columns, no one will ever accuse Judge Ruckreigle of being rushed into a decision. This jurist is a serious listener who gives everybody more than enough opportunity to state their claim. He also has lots of other cases to handle. He is short staffed. His judicial budget has been severely cut at the same time case filings have risen 30 percent. Don't expect a trial this spring and maybe not even this summer. DNA results won't be back until late April. That may lead to even more motions and delays.

One issue that was resolved was that of sharing DNA. After the death of lots of trees, the DA finally conceded that he has to share. Team Kobe has hired a lab and expert (Dr. Elizabeth Johnson) from Ventura, California. (Technical Associates, Inc. 4125 Market Street Suite 3 Ventura, CA 93003 (805) 677-2155 fax (805) 676-1638).

I believe the untested DNA may come from the vaginal swabs taken from the victim at Valley View Hospital on July 1, 2003. Those samples are going to be split and shared. The results cannot hurt Kobe Bryant. He has acknowledged his adultery so a finding of his DNA inside her is meaningless. What Team Kobe hopes is that even more unidentified DNA might be found lending further support to their "nut and slut" defense.

Speaking of Valley View Hospital, they were part of the bungling bureaucracy which led to the distribution of the alleged victim's May 30, 2003 purported suicide medical records being turned over to the defense. Actually, the hospital mistakenly supplied the two-page May 30 report to the prosecution when they were supposed to only provide the July 1 records. The DA simply bait stamped in the documents and turned them over to Team Kobe. That happened nearly six months ago.

Kobe Bryant's defense team was ordered by Judge Ruckreigle to do what the prosecution long ago did when they realized the mistake -- destroy the document. That is small consolation to Bryant's accuser. You can't unring a bell. Until and unless the Kobe Bryant lawyers have partial lobotomies, they will retain the knowledge gleaned from that report.

The prosecution team wishes they would have destroyed those Kobe hangman "cheater" T-shirts as rapidly as they did the hospital report. The prosecution has been forced to turn over to the defense detailed information about who ordered and who received the T-Shirts and you can expect we have not heard the last of that. The lynching symbolism fits nicely into the racism defense. Last week, Team Kobe filed a motion which referenced the Scotsborro incident-- a legendary miscarriage of justice involving women making false allegations of rape against black men.

This race card defense was the third card we've recently seen played by the Bryant defense. A couple weeks ago, we heard from them that this false rape report was a calculated effort, just like her purported suicide attempts, to gain the attention and renewed affection of her ex-boyfriend. Last week, we read a Team Kobe motion contending that the mentally ill woman might have really believed she was raped although she was not because of her bi-polar, manic-depressive condition.

Consistency is the hobgoblin of little minds. It is not a requirement of a criminal defense strategy. In truth, none of the defense lawyers know for certain why this woman would make a wrongful rape allegation. Neither will the jury. The defense task is to provide a smorgasbord of plausible theories from which the jurors can each pick a plate containing reasonable doubt.

The afternoon session brought the most passionate defense arguments. There was a certain quiet intensity to Hal Haddon's argument on behalf of his client. The Motion to Suppress Statements needs to be closed to the media and the public, he pleaded. Whatever Kobe Bryant said, it was "of a very personal nature and highly embarrassing." The mind runs wild wondering what it is that was said that could be so mortifying in retrospect for Kobe Bryant.

The media's attorney, Christopher Beall, argued for public access to this important and interesting suppression hearing set for February 2 and 3. Mr. Beall did his best but expect the media to lose yet another motion. First of all, it is apparent to anybody who has sat through these court sessions that the judge seems to have an affinity and a similar temperament to Hal Haddon. If Team Kobe loses its Motion to Suppress, we will hear these statements at trial. If they prevail, we likely never will.

During the afternoon session, in the front row on the public side, the alleged victim's family sat. There was her mom and dad, two very blonde aunts, an uncle, along with two younger male family members. Right behind them, a sketch artist used her drawing pens and opera glasses to draw the scene, with the focus clearly on Kobe Bryant.

Kobe Bryant had to be alarmed each time he looked to his right at the four prosecutors sitting for most of the day in the jury box as other lawyers like Beall and Causey made legal arguments from the prosecution table. There is little doubt that Mark Hurlbert, Ingrid Baake, Greg Crittendon, and Dana Easter would all vote guilty.

Speaking of juries, on Larry King Live on Friday night, jury consultant JoEllen Demetrius (part of the OJ Simpson dream team) disclosed she has been retained by the Eagle County prosecutors. So has famed forensic analyst Dr. Henry Lee (part of the OJ Simpson dream team) and famed pathologist Dr. Michael Baden (part of the OJ Simpson dream team). One might ask how it is, given the gag order imposed by the court, that this highly paid agent of the prosecution can go on international television and influence the potential jurors she is hired to help select about the Kobe Bryant case. It's a damn good question.

This case seems to be combining many aspects of both the OJ and JonBenet (all the metro Denver DAs chipping in; Henry Lee, the involvement of Ramsey attorney Hal Haddon) cases, neither of which ended in a conviction. Speaking of OJ (remember his hand in the glove demonstration), Kobe Bryant's hand got measured on Friday pursuant to a prosecution motion for non-testimonial identification evidence. It may not be the last body part of Kobe Bryant that gets measured before this case is said and done. And again, that could be a really long time from now.

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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