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Kobe Byrant's Accuser: Is She Folding?

Lawyers for Kobe Bryant's accusers Wednesday said she is re-evaluating whether she wants to continue to participate in the criminal proceeding against him. They said she may rather bring a civil suit against him.

One of the accuser's attorneys, Atlanta civil attorney Lin Wood said, "I'm of the mind that she's only going to be treated fairly in a civil case, where the playing field is level and Mr. Bryant's life will be scrutinized." Wood joined the case several weeks ago. According to legal experts, his hiring by the accuser's family indicates more emphasis is being spent on the civil portion of the case.

Legal analysts aren't surprised. The case against Kobe has been going downhill for some time. With the release of a pre-trial hearing transcript containing testimony by a defense expert that she believes the accuser had sex after the encounter with Kobe and before she arrived at the hospitial for her rape exam, a conviction will be hard to obtain.

But the same credibility problems that have plagued the accuser in the criminal case will follow her into the civil case. Unless a settlement is agreed upon, I don't see a civil case coming out in her favor. This sounds like a last-ditch attempt at a graceful exit strategy.

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New Kobe Transcript Shows Prosecutor's Doubts

The Judge in the Kobe Bryant case released all but 68 lines of the 200 pages of sealed hearing transcripts from the rape-shield hearing. The transcripts address the accuser's sexual history and were mistakenly mailed to media outlets.

The Judge later ruled that evidence of her sexual activity within 72 hours of the time she arrived at the hospital for her rape exam, is relevant and admissible.

Ruckriegle late last month said the defense can present evidence about the woman's sexual activities in the three days before a July 1, 2003, hospital exam, saying it is relevant to help determine the cause of her injuries, the source of DNA evidence and her credibility.

Thus, by order of the Colorado Supreme Court, he had to make available the transcripts, striking only parts that pertained to information he ruled inadmissible. Here's one exchange that took place:

"If in fact you were to rule that all of the rape-shield evidence were going to come in in this case, I'm thinking the prosecution is going to sit down and re-evaluate the quality of its case and its chances of a successful prosecution," Prosecutor Ingrid Bakke told the judge.

Another section of the transcript contains:

....detailed comments from a defense expert who says she believes Bryant's accuser had sex with someone else after her encounter with the NBA star and before she went to police, a claim that has been vehemently denied by the woman's attorney.....Johnson, however, said the woman told police she showered the morning of June 30 and put on clean purple underwear. But she said her laboratory and the Colorado Bureau of Investigation both found genetic material matching Bryant and a man identified as "Mr. X" on that garment.

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Kobe: Colo. High Court Bars Release of Transcripts to Media

In a 4-3 split decision, the Colorado Supreme Court today upheld a trial court's order in the Kobe Bryant Case prohibiting the media from publishing or disclosing the contents of transcripts of a sealed hearing disseminated to the media through a mistake by the court reporter--even though it is a prior restraint of press.

"This prior restraint is necessary to protect against an evil that is great and certain and would result from reportage," the court ruled.

Justice Michael Bender (formerly an esteemed Colorado criminal defense lawyer) wrote the dissenting opinion:

Justice Michael Bender .... said it was unfair to hold the media responsible if a court failed to do its job to protect confidential information. "The power the majority authorizes is the power of the government to censor the media, which is precisely the power the First Amendment forbids," Bender wrote.

The text of the decision is available here.

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Kobe Ruling: Statements Come In

The Judge in the Kobe Bryant case has ruled on the defense motion to suppress his statements and the clothing he turned over to the detectives in his hotel room. Motion denied. Why? In a nutshell, and we just finished reading the very long ruling which is not yet available online because of a court website malfunction, here's why. The Judge found:

1. Kobe was not in custody and a reasonable person in his situation would have felt free to leave.

2. He consented to talking to the police officers and allowing them to accompany him to his room and he voluntarily turned over the clothing they were seeking.

3. There was no need to rule on whether the search warrant was valid or not because the cops said they never executed it. The prosecution relied solely on consent, and the Judge sided with them.

4. As to credibility issues, there were some differences between what Kobe's bodyguards said happened and what the detectives said happened with respect to how the questioning came about, and the Judge sided with the detectives.

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Kobe Accuser Hires Famous Lawyer

This is the smartest move the accuser in the Kobe Bryant case has made to date: She's added Atlanta libel guru Lin Wood to her legal team. Lin Wood is the lawyer for John and Patsy Ramsey and Richard Jewell, among others. He will be a forceful advocate for her privacy rights. In addition to trying to keep the media from publishing the mistakenly released sealed transcripts of the rape-shield hearing, he'll likely begin scrutinizing all media comments for potential libel lawsuits.

As a legal analyst, the hiring won't silence us or change our commentary, we'll just be on high alert (as opposed to our current state of "cautious") as to how we phrase it from now on. As we told the Los Angeles Times the other day:

....Merritt said that too often the public thinks defense lawyers are attacking an accuser's character when instead the issue is their credibility. In rape cases that hinge on consent, she said, witnesses' credibility is crucial...."The defense attorney has an obligation to bring out any facts to the jury that support his or her client's defense," she said. "The defense lawyer is not needlessly attacking the victim of a rape. They're going after that person because her story doesn't ring true."

Ampersand politely disagrees with us. We understand her position. But credibility is fair game.

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Kobe Prosecutor Drops Out of Trying the Case

Big news in the Kobe Bryant case. Mark Hurlburt, the elected DA who made the decision to charge Kobe, has announced he won't be trying the case, but leaving it to the deputy
DA's. He's decided his county needs him to do administrative work.

While its not unusual for elected DA's to spend more time on administrative matters than trying cases, they often try the high profile ones. Here, the citizens of the 5th Judicial District are paying Hurlburt to be the prosecutor--yet Hurlburt has decided to spend the district's money importing two prosecutors from Boulder and Jefferson County. If Hurlburt were really concerned about conserving the district's resources, he'd send the two prosecutors back and try the case himself.

On the other hand, we commend Hurlburt for recognizing there are other cases and people in his district in need of prosecution services and that far too many of the district's resources, both in time and money, have been spent on Kobe's case. How many prosecutors does it take to try a rape case?

The Denver Post has more here.

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Trial Date Set in Kobe Bryant Case

It's official...Jury selection in Kobe Bryant's trial on a sexual assault charge begins August 27. The Judge expects jury selection to last four to five days. The trial likely will last between two and four weeks.

In other case news, the court reporter made a big mistake and sent transcripts of sealed hearings to 7 media outlets. The Judge ordered the media to destroy the transcripts and not distribute them.

The trial should be over by the beginning of basketball season. Reporters have been asking us if we think there is any chance of a plea bargain. In our view, the only deal that would be acceptable would be a misdemeanor plea to a non-sex offense. The only way we can see that being put on the table is if the Judge were to rule Kobe's statements inadmissible --and the accuser's contemporaneous sexual activity and medical history admissible.

The setting of a trial date suggests to us that several key rulings, including on the three issues just mentioned, will be released shortly. More hearings are set for July 19 - 21.

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1,000 Jurors to be Summoned for Kobe Bryant Trial

Two days of hearings wrapped up Tuesday in the Kobe Bryant case. No trial date has been set, although late August is a possibility. The significant motions over suppression of evidence and admission of other sexual activity of the accuser are still under advisement by the Judge. Here's some news: The clerk will send out 1,000 jury summonses for the trial. In an ordinary trial in Eagle county, a max of 250 might be sent out.

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Judge Considers Sanctions Against Kobe Prosecution

The Judge in the Kobe Bryant case today issued an order (pdf.) directing the prosecution to show cause why they haven't complied with his latest order regarding DNA testing--and to establish why sanctions shouldn't be imposed .

Because the DNA testing is so critical, Bryant defense attorneys Pamela Mackey and Hal Haddon have requested that their DNA expert, Dr. Elizabeth Johnson, be present at DNA testing done by the prosecution. Ruckriegle granted that request in early May and said that a defense expert should be allowed to view the prosecution testing. Prosecutors assured the defense that their expert could be present.

But earlier this week, Mackey and Haddon said they were notified by letter that the prosecution had chosen, in direct violation of Ruckriegle's order, a lab that won't permit their expert to witness the prosecution DNA testing. On Wednesday, they informed Ruckriegle of the violation and asked that he find out why the violation was occurring. And today, Ruckriegle gave prosecutors until Tuesday to tell him why they failed to select a laboratory which would permit the defense expert to be present. He also asked them to show why he shouldn't impose sanctions.

We note that Kobe's lawyers didn't ask for sanctions, the Judge acted on his own initiative in asking why they shouldn't be imposed.

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Judge: Kobe Accuser Can't Be Called Victim

The defense scored a major victory in the Kobe Bryant case today. The judge ruled the prosecution cannot refer to the accuser as a "victim.' This is the right decision. In order for the accuser to be a victim, there has to be a crime of which she was the victim. Kobe's defense is there was no crime, just consensual sex. By calling her a victim in front of the jury, the jury is in effect being told there was a crime.

A rape charge where the defense is consent is not like a murder charge where we know in which it's acknowledged a crime occured and it's just a question of who did it. In that kind of a case, there is a victim who is dead.

This decision levels the playing field and causes no detriment to the prosecution.

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Kobe Bombshell--In His Favor

We were at the studio today getting ready for our Terry Nichols' segment on MSNBC's Abrams Report when we were told there was big breaking news in the Kobe Bryant case and we were switching to cover Kobe Bryant instead. (Only in America would the case of a basketball star charged with sexual assault arising from an admittedly initially consensual encounter trump the news that a man had been convicted of 161 counts of first degree murder in the second largest case of domestic terrorism in history.) So, here's the big Kobe news:

DNA test results from the Colorado Bureau of Investigation reportedly show that tests taken the night after the incident at the hospital during the "rape exam" show there is a white male's semen not just on the accuser's yellow knit underwear, but inside her body (and possibly on her thigh). If so, the exuse of wearing "dirty underwear" to her rape exam is probably out the window. Plus, it may mean she lied to investigators when she told them the last time she had sex with someone other than Kobe was two or three days before, with her boyfriend, who wore a condom.

The defense has been alleging for months that the accuser may have had sex with someone after having sex with Kobe and before arriving at the hospital for her rape exam. They have said in pleadings several times that the pinpoint lacerations the accuser suffered to her posterior forchette were the result of repeated consensual activity within a short period of time, not sexual assault. They have filed motions alleging that the accuser has had sex with two prosecution witnesses--and they have requested that two specific white males be ordered to submit to DNA testing. If these test results bear that out, we say there's a good chance this case is over.

Kobe's pre-trial hearings continue tomorrow in Eagle. We're scheduled to review the day's events again on the Abrams Report, MSNBC, 6 PM ET. At issue will be whether the defense can call two crime scene experts to testify that the Eagle authorities botched the investigation by failing to collect important evidence that could have established Kobe's consent defense. Our view, from yesterday's show:

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Kobe Bryant's Lawyers Allege Police Bias in Investigation

Kobe Bryant's lawyers have requested permission to call two expert witnesses at Thursday's hearing to show the police conducted a shoddy and incomplete examination of evidence in Kobe's hotel room that would have shown his innocence.

[Attorney Hal] Haddon said the men “closed their eyes” to potential physical evidence at the site of the alleged crime that might have confirmed Bryant’s innocence. “The failure to conduct the most ’regular’ police procedure — investigation of a crime scene and collection of physical evidence — suggests both a bias against Mr. Bryant and a willful or reckless unwillingness to consider the possibility that Mr. Bryant committed no crime and that the accuser was lying about the sexual encounter for ulterior motives,” Haddon wrote.

....Defense attorneys say crime scene investigators should have taken more photos, collected the chair that was the site of the alleged assault, examined carpet near the chair and collected material in waste baskets.

We'll be talking about the case today during the second half hour of MSNBC's Abrams Report ( the show begins at 6PM ET).

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Does 'No' Automatically Make it Rape?

A feminist, a Laker fan and a teacher struggles with determining where consent ends and rape begins.

Is it rape, a criminal act of violation, when you have willingly joined someone late at night? He hasn't drugged you or strong-armed you, as far as anybody knows. But sometime between entering the door and rushing out of that same door, you became uncomfortable with the sex and wanted it to stop. He didn't, and you're furious. You feel violated, and rightfully so. But is it rape? Did Kobe Bryant force this woman to have sex? Or to finish what they both had started?

Our view has been that "no" means "no"--provided the "no" has been effectively and clearly communicated in a way that any reasonable partner would have understood.

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Kobe Bryant to Enter Not Guilty Plea Today

Kobe Bryant is expected to enter a "not guilty" plea today, which will result in a trial date being set within six months. Yesterday's hearing and this morning's were behind closed doors. The accuser attended as a spectator.

The defense is also asking for expanded voir dire-- they will want to weed out jurors seeking fame or fortune from serving on a jury in such a high profile case. We also think race will be an issue in jury selection.

Today the Judge will hear arguments about whether the accuser can be referred to as "the victim" at trial. We hope he rules "no"--that pre-supposes a crime has been committed of which the accuser is a victim. It implies Kobe's guilt. There is a name in the law for the complaining witness in a rape case--prosecutrix--maybe they should just call her that.

Denver defense attorney Jeralyn Merritt thinks race may well be an issue with potential jurors, given that the case involved a black man charged with a white woman's rape. Merritt said you don't ask the potential jurors if they're prejudiced because everyone will deny that they have a prejudice against racial minorities.

"The trick is to ask open-ended questions that will draw them out," Merritt said. "You want them to talk about their biases and prejudices."

[Defense Attorney Larry] Pozner agrees. "America is not yet free of racism," he said. "The American system is not yet an ideal place for either side."

We'll be discussing this week's hearings today on MSNBC's Abrams Report, 6pm ET.

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Kobe Plea Date Set for May 10

Two and half days of hearings in the Kobe Bryant alleged sexual assault case ended today with no rulings on the admission of the accuser's sexual history or the suppression of Kobe's statements to sheriff's investigators. However, the Judge did set May 10 as a date for Kobe to plead "not guilty". This is the date that will start the speedy trial clock running.

Our source in the courtroom tells us that the Judge pressed the accuser's attorney quite hard on why he chose to file a public motion for his client seeking an accelerated trial date--with a letter attached from the accuser's mother. Our source says the questioning was so pointed s/he was left with the impression the Judge was accusing the accuser's lawyer of grandstanding for the public.

In a twist from the usual practice, it seems the Prosecution has filed several motions in limine to prevent the defense from presenting certain expert witnesses. Usually, it is the defense that tries to exclude evidence. What doesn't the prosecution want the jury to hear?

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