Down To Business For Kobe Case

NBA basketball star Kobe Bryant follows his attorney Pamela Mackey, right, into court for a closed pre-trial hearing on his sexual assault charges at the Justice Center in Eagle, Colo., on Monday, April 26, 2004.
Attorney Andrew Cohen analyzes legal issues for CBS News and CBS

You are going to hear a lot over the next few days from jury consultants who are going to opine about what sort of jurors each side wants to select in the Kobe Bryant rape case. Don't listen to a word they say. They don't really know any more than you or I about what kind of jury is more likely to convict or acquit the young basketball player.

Jury consultants are like meteorologists, only no one ever gets to know for sure whether their forecasts were correct or not. There is simply no way to accurately predict weeks in advance what a human being is going to do or say or feel during jury deliberations. There is no provable calculus that tells us that a particular jury with a particular background is going to see a case any particular way. In fact, the only way to make jury consultancy an accurate science would be to have consultants talk with jurors after the evidence has come into a trial and that isn't going to happen anytime soon.

Is a woman more likely to be sympathetic to Bryant's alleged victim? Maybe yes and maybe no. Maybe a woman can better empathize with Bryant's accuser because that particular juror could more easily put herself in the alleged victim's shoes than a man could. Or maybe a female juror is going to judge the alleged victim more harshly because that particular juror never would have gone alone to a man's hotel room in the first place. Maybe a female juror will see the alleged victim as a naïve young woman caught in the wrong place at the wrong time. Maybe a female juror will see the alleged victim as a sexual predator of her own.

Is a man more likely to be sympathetic to Bryant? Maybe yes and maybe no. Maybe a male juror is going to be more sympathetic to Bryant because that particular juror has had difficulties in the past with women. Or maybe that juror is going to judge Bryant more harshly because he feels that Bryant clearly should have known better than to have any contact, much less any alleged criminal contact, with a woman in the circumstances we know about from last June 30th. Some men might judge Bryant harshly for being naïve. Others might judge him gently for being naïve.

Is a minority juror going to be more sympathetic to Bryant because he is black? I don't know. Is a white juror going to be more sympathetic to the alleged victim in the case because she is white? Is a wealthy juror going to be more sympathetic to Bryant because he is rich? Is a less wealthy juror going to be more sympathetic to his accuser because she isn't as wealthy as her alleged rapist? Is a small-town juror going to be tough on Bryant because he is the epitome of big-town style? Or is a small-town juror going to be overwhelmed by Bryant's fame and prowess on the basketball court? You tell me and then we'll both know nothing.

This trial isn't going to be won by giving an obscene amount of money to a bunch of jury consultants so that they can try to identify generalities about jurors. It is going to be won, or lost, based upon how a series of facts and legal theories comports with the sensibilities of the Bryant jury. It is going to be won or lost based upon how effective the lawyers are in highlighting the strengths of their own cases and the weaknesses of the other side's cases.

The prosecution's case against the Los Angeles Lakers star is either going to make sense to jurors or it won't. If it does, Bryant could very well be convicted. If it doesn't, he walks. Either the alleged victim's story is credible or it is not. If it is, Bryant's in trouble. If it isn't, Bryant walks.

Either there is good evidence that the alleged victim had sex with another man after she was with Bryant but before her rape exam or there isn't. If there is, Bryant probably walks. If there isn't, he's in trouble. There are some cases where jury selection really might matter. This isn't one of those cases. It's as complicated and as simple as that.

So let the jury selection begin! Let the poor huddled masses come forth and fill out their jury questionnaires. Let them truthfully answer all the questions they'll be asked about pretrial publicity and their ability to put aside all they already know about Bryant and his accuser. Let them contemplate how much their lives will change between now and the end of September. Let them try to weasel out of jury duty or, alternatively, weasel out of their other major commitments in life for the next month. Let's finally get this sorry case started.

By Andrew Cohen