Analysis: End Game For Kobe Case?

NBA star Kobe Bryant arrives at the Eagle County Justice Center for a pretrial hearing on his sexual assault charge on Wednesday, April 28, 2004. (AP Photo/Pool, Andy Cross) AP

Attorney Andrew Cohen analyzes legal matters for CBS News and CBSNews.com.




Kobe Bryant's rape case is as close as it has ever been to dissolving short of trial. Friday's rape-shield ruling by Eagle County Circuit Judge Terry Ruckriegle is a devastating blow to prosecutors and a huge victory for the defense. It puts enormous emotional and personal pressure on the alleged victim in the case and makes it virtually impossible for prosecutors to convict Bryant of sexual assault beyond a reasonable doubt. In their heart of hearts, the prosecutors know all this. The defense team knows it. The alleged victim and her attorney know it and the judge does, too.

That's why Judge Ruckriegle ended his remarkable eight-page order by extending until July 28 the "plea negotiation deadline" in the case. Normally those sorts of extensions are routine but not now; not this time. I think the judge is signaling the parties that he expects them to talk seriously about a deal in the next few days and that he would be content if this fever-inducing case were taken off his docket. His ruling tells both prosecutors and the alleged victim that they don't have much to gain by proceeding, while at the same time continuing to protect from public view (for the time being anyway) the substance of the evidence. The judge is, in short, creating the necessary incentives that would be the prerequisite for a deal.

What kind of deal? Not a plea deal. Even if the parties wanted to agree to a deal whereby Bryant would plead guilty to a minor crime, Colorado law still would require Bryant to register as a sex offender because of the current charges against him. Team Bryant has consistently said that won't happen and I believe them. But there are other sorts of deals that could and would end this case short of trial. Prosecutors could dismiss the charges against Bryant, with the consent of his alleged victim, in exchange for some sort of public statement by Bryant wherein he accepts responsibility for inappropriate conduct and pledges to make a contribution to a victims' rights fund. Or something like that. A lot of people would save face with a deal along those lines.

That wholesale face-saving may be necessary because of the judge's order. The judge ruled admissible at trial "all evidence, whether direct or circumstantial, of the alleged victim's sexual conduct within approximately 72 hours" of her rape examination. He ruled admissible at trial "all physical evidence taken by law enforcement and the nurse examiners from the alleged victim, including all items of clothing and swabs from the physical examination. And he will allow the defense to introduce "evidence regarding the general nature of the relationship between the alleged victim and each outcry witness" including any evidence that "may include whether sexual intimacy was and is a part of each relationship."

The judge rejected the admissibility of other evidence of the alleged victim's sexual history that the defense wanted to introduce to the jury. But the ruling, on the whole, means that Colorado's rape-shield law didn't and couldn't shield the alleged victim in this case from parts of her sexual past. The judge ruled that the sexual activity in this case fell into one of the exceptions to the rape-shield law, an exception that only rarely succeeds in permitting such evidence to come before a jury. This was a fact-driven ruling, not a law-driven ruling; it was a ruling based upon a hearing that lasted for portions of nine days in court. It is a hearing that won't easily be overturned on appeal, if prosecutors decide now to pursue such a course.

It's hard to over-estimate the impact Friday's ruling has and will continue to have on the dynamic of the case. Even though the judge will allow prosecutors to pursue other legal means to keep the evidence from the jury those means almost certainly will fail. The judge already has deemed the evidence "relevant" to a "material" issue in the case. So it's probably only a matter of time before the Bryant jury -- and the rest of the world -- finally get to hear the details of the alleged victim's sexual activities just before and just after her encounter with Bryant. Can you imagine what must be going on inside her head now? Can you imagine what her family must be going through now that this information is on the verge of being officially disclosed? I can't.

Legal strategies aside, what does the ruling really mean? A lot. It means that the defense will be able to try to convince jurors that the alleged victim had sex with another man just after her encounter with Bryant. 'Who gets raped and then goes out has sex?' the defense will ask the jury. How do you think the answer to that question would affect the credibility of Bryant's accuser in this he-said/she-said case?

The ruling also means that the defense will be able to try to convince jurors that the alleged victim was a sexual predator, or a woman with such a sexual appetite that it would be reasonable to assume that she consented to sex with Bryant.

And the ruling means the defense can try to portray the alleged victim as someone who would have falsely accused Bryant of rape in order to save face with her boyfriend or any other man in her life she might have had sex with around this time.

The ruling means more bad news for prosecutors and the alleged victim but you get the idea. The evidence that the defense now will be able to use at trial will go, as the judge said, directly to the issue of the alleged victim's "credibility and bias." lt will go directly to the perceptions jurors have of her as they sit through the trial. There is a reason that Colorado and most other states enacted rape-shield laws in the first place. They were enacted -- and their exceptions were very narrowly defined -- precisely because this sort of evidence typically is devastating to the alleged victim and thus to the prosecution. It will be so in this case. It is almost inconceivable to me that prosecutors will be able to meet their burden of proof in this case now that the defense may raise these sorts of fundamental questions about what happened before, during and after Bryant met his accuser last June.

So a weak prosecution case just got immeasurably weaker. And the argument for stopping this case now before things get worse just got a lot stronger. If prosecutors weren't listening to that argument before, they ought to be listening now.


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  • David Hancock

    David Hancock is a home page editor for CBSNews.com.

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