Bryant Judge To Lawyers: Duh

Attorney Andrew Cohen, a Colorado resident, analyzes legal issues for CBS News and CBSNews.com.



In his last official act before departing the grand stage of this multi-act, real-life drama, Eagle County Circuit Court Judge Frederick Gannett got it right Monday when he issued his breathlessly-awaited "probable cause" ruling in the Kobe Bryant rape case. Correctly interpreting the law, and reasonably evaluating the district attorney's presentation, Gannett ruled that prosecutors had offered just enough evidence to bind Bryant over for trial without showing nearly enough to get him convicted if there is a trial.

The ruling — both its rationale and its result — should have surprised no one. Before the hearing, Gannett warned prosecutors that they shouldn't play "chicken" with him by offering a weak case during the preliminary hearing. He encouraged them to put on a strong case in order to make his job easier. But clearly they didn't. In fact, prosecutors during the two-session hearing offered such a weak presentation that it allowed defense attorneys to raise vital questions about the case against Bryant.

So surely prosecutors should have expected that Gannett on Monday would recognize their "minimal" showing even as he grudgingly permitted their case against Bryant to go forward. After all, prosecutors themselves apparently decided that it was more important to hide until trial some of their evidence than it was to create the perception now that they have a strong case against Bryant. Although prosecutors frequently withhold their best evidence for trial, Bryant's prosecutors have only themselves to blame for the current state of their case.

It's true that prosecutors won that game of "chicken" with Gannett. He gave them what they wanted, a probable cause finding, without getting from them what he wanted, a lot of evidence at the hearing. But the price of that victory seems to me to be fairly steep. Potential jurors in Eagle County (and everywhere else in Colorado) now are rightly thinking and talking about all the questions that now surround the case against Bryant. And that's clearly not a good thing for prosecutors.

Since there likely won't be any surprises at trial anyway — discovery rules tend to preclude "Perry Mason" moments in court — you would have thought that prosecutors in this case in particular would have erred on the side of caution; on the side of presenting more evidence at the preliminary hearing than they needed to. This strategy not only would have better satisfied Gannett, who presumably would then have written a more pro-prosecution ruling, it also might have changed the dynamic of media coverage of the case. Instead of having people like me focusing upon the many apparent weaknesses in the prosecution's case, the district attorney, with a stronger showing during the hearing, might have induced me to talk about the need for Bryant's lawyers to sue for peace.

Meanwhile, surely Bryant's attorneys should have expected even as they lost this round that the judge would acknowledge that "the totality of the evidence ... leaves no doubt that there are a considerable number of issues to be determined by the trier of fact" (i.e. the jury). The defense knew going into the hearing that the only way they could prevail would be to convince the judge that the alleged victim's story was "incredible and implausible as a matter of law." That legal standard is as high as the prosecution's "probable cause" standard is low. And it's a standard that the defense simply couldn't meet after the judge accepted into evidence photographs taken of the alleged victim's injuries.

So while defense attorneys said Monday that they were, "of course, disappointed," they surely were not surprised. They didn't aggressively attack the prosecution's lone witness thinking realistically they could actually get the case tossed out; they attacked because they wanted the world to ask the very questions about the case against Bryant that the world now is asking. And they got lucky that prosecutors chose to put on such little evidence. For them, portions of Gannett's ruling represent a rough draft of the narrative they hope to hammer home to jurors at trial.

If you understand that context and those expectations, perhaps you can better understand that the paragraph that caught everyone's attention Monday — Page 7, if you are keeping score — really was no more than an expression of the judge's view that he might have ruled differently if Colorado law were different. "Almost all of the evidence introduced at the preliminary hearing," Gannett wrote, "permits multiple inferences which, when viewed either independently or collectively, and upon reasonable inference, do not support a finding of probable cause."

Had the judge stopped there in that paragraph, Bryant's case would have been dismissed. But the judge could not stop there for the simple reason that Colorado law required him to go further. So "simply put," Gannett went on, "this Court could not make a finding of probable cause in the instant matter absent reliance upon those inferences supportive of the People's case." In other words, the judge ruled that since Colorado law required him to evaluate the evidence in the light most favorable to the prosecution, he did so and, doing so, concluded that probable cause was established. That's not shocking. It's just black-letter law.

All the judge really did before departing forever from the scene — he won't be the trial judge, remember — was to issue a ruling that reflects what he rightly saw as the dual realities of the case so far. The law heavily favored prosecutors even as the facts presented tilted heavily toward the defense. The Bryant ruling, then, says much more about Colorado's probable cause standard and preliminary hearing procedures than it does about what is likely to happen at the Bryant trial. Read more into it at your own peril.

Here's what I read into where we are in the latest trial-to-end-all-trials. Prosecutors barely won a battle that should have been a breeze. The defense did the best it could in difficult circumstances. The judge got it right. And there will be many more major skirmishes before the war is through.

By Andrew Cohen
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