Full-Court Press In Kobe Case

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

With a pair of court filings late Friday, Team Kobe now has made clear its legal strategy in advance of the Oct. 9 preliminary hearing in the case.

The defense wants to close the preliminary hearing to the public and the press and, failing that, may waive the hearing altogether rather than risk giving prosecutors the opportunity to make their evidentiary spin the first such in-court spin that takes hold in the case.

You never get a second chance to make a first impression, remember, so although Bryant told the judge last month that he wanted a preliminary hearing, he may be preparing to change his mind unless he gets his way.

If you were really cynical, you might say that the defense is setting itself up to fail so that it then can blame a series of bad judicial rulings for the decision to back away from the Oct. 9 court date.

If you weren't cynical at all, you might say that Team Kobe is simply trying to ensure that if there is a preliminary hearing it is going to be as favorable to the defense as is humanly and legally possible.

Either way, it's the kind of tactical set-up you'd expect from good defense attorneys who also are experienced in dealing with high-profile cases. Bryant cannot win or lose the case depending upon how this matter gets resolved. However, even if it gets resolved against him, his attorneys already have insulated him somewhat from a public relations' hit that surely would follow if the judge were to find, as he likely would find, that "probable cause" exists to believe that Bryant committed sexual assault.

Bryant's attorneys late last week asked Eagle County Court Judge Frederick Gannett to close the preliminary hearing "to the public and the media." The defense doesn't want potential jurors, or journalists who will report back to potential jurors, viewing what is almost always a prosecution show — a preliminary hearing that permits the government to introduce all sorts of evidence that might not be admissible at trial.

In support of this request, the defense mostly cited Judge Gannett himself, specifically the judge's August 21 order sealing the details of the arrest warrant and search warrant materials. Since the district attorney has promised to present much of the same information at the preliminary hearing that was part of this documentary evidence, the defense argues, the judge should go ahead and "seal" the hearing, too.

It's not a case of apples and oranges, the defense asserts, since a public airing of the allegedly sordid details at a preliminary hearing would have the same prejudicial effect on Bryant's constitutional fair trial rights as the public release of the allegedly sordid details of the search warrant materials would have had. By quoting the judge's August sealing order so extensively throughout their motion — pages 2, 3, 4, 10 and 11 have a distinctly Gannettian tone — the defense attorneys are daring the judge to come up with some legal rationale for why Bryant should be protected from sordid documents but not from sordid testimony.

I think the judge will find that rationale in the simple fact that no one is forcing Bryant to endure the vicissitudes of a preliminary hearing. He's free to simply waive it and get right to the arraignment in district court.

But the defense didn't just throw the judge's own words back at him. Bryant's lawyers also noted that another judge had sealed the 911 dispatch records of the case because of fear of undue prejudicial publicity; that prosecutors themselves had moved earlier in the case to seal records based upon the same arguments the defense now uses; and even that the alleged victim would benefit from a closed hearing by avoiding the "anxiety" she says she would endure if forced to testify.

It is as if the defense wants the judge and the rest of us to think not only that it is in everyone's interests to close the hearing to the public and the media but also that all sides in the case already have essentially agreed to do so, including the media, which desperately wants the hearing open, and the alleged victim, who desperately wants to be anywhere else in the world but in Eagle, Colorado, on Oct. 9.

It is a perception that is not likely to take hold with prosecutors, who almost certainly will file a sharp response in the next few days, or the media's attorneys, who almost certainly will howl at how the defense has overreacted to a simple request for an overflow-seating courtroom, or the victim, who no doubt will find it galling that Bryant is complaining about a public hearing while at the same time forcing her out into the open with a subpoena.

But Bryant's accuser at least — or her attorneys, anyway — already have started playing the mind game as well.

She filed an important and interesting motion late Friday herself. Through her attorneys, she says she is not needed at the preliminary hearing since she already has agreed to testify for prosecutors at trial.

Telling the judge that he "knows of no Eagle County case where a sex assault victim was forced to testify at the preliminary hearing over his or her objection," attorney John Clune then did a clever thing you don't see enough of in the law. He attached as an exhibit to his motion to quash the subpoena another motion to quash a subpoena filed last year by the law firm now representing Bryant. If you don't think I'm making a good argument to keep the alleged victim out of court at this time, Clune is telling the judge, then listen to the arguments made just last year by the defendant's own lawyers. If moving to quash was good enough for them then, Clune implies, it ought to be good enough for us now.

I know what you are thinking: lawyers are priceless, right? Right.
By Andrew Cohen