You are not alone if you have dozens of questions following last week's staggered and staggering start to the preliminary hearing in the Kobe Bryant sexual assault case. Since late last Thursday afternoon, when pandemonium erupted inside an Eagle County, Colorado, courtroom, legal beagles like me have been absolutely overwhelmed by queries into what happened, what will happen, and what it all means.
Never before have so many asked so much of so few who truly know so little. My short answers to the above questions are, in order; 1) I don't know; 2) I don't know, and; 3) who knows? But since you folks obviously won't stop bugging me until I offer an educated guess, here goes. Here are the five most frequently asked questions and my honest attempt at answering them.
Did Bryant defense attorney Pamela Mackey purposely disclose the name of the alleged victim six times in court? No, I don't think so. I know Pam Mackey and I don't believe she would do that on purpose. She isn't that type of person or lawyer. Also, if someone were willing to be so intentionally underhanded — there is a court order that prohibits the young woman's name from being publicly identified — it seems to me they would only have blurted out the name once, not over and over again.
Furthermore, I was in the courtroom when Mackey's mouth runneth over and she seemed obviously and genuinely mortified by her gaffes. Finally, the whole issue of anonymity for the alleged victim is quite spurious. It seems as if everyone in Eagle knows her name — knows her personally, actually — and there sure didn't seem to be a lot of people in that courtroom Thursday who needed Mackey to remind them who was accusing whom of what.
Was Mackey justified in raising the question of the victim's past sexual history? Probably, although none of us will know for sure until more evidence comes out. Mackey asked the loaded question — did the lead investigator in the case ask the alleged victim's nurses whether her injuries were "consistent with someone who had sex with three different men in three days" — only after prosecutors themselves suggested that Bryant had inflicted the injuries upon the woman during the rape. To the extent that it is possible that someone else might have inflicted those injuries — assuming there are injuries — Mackey's question was both relevant (if Bryant didn't cause injuries, there is less physical proof of a crime) and consistent with Colorado's rape shield law (which allows sexual history if it goes to the question of injuries, etc.).
Did Mackey have to have proof of these "other men" to ask such a question? Well, yes. If not definitive, take-it-to-bank proof, then certainly some evidence that a lawyer might reasonably rely upon to take the cross-examination in that direction. In other words, Mackey couldn't just have made up a bombshell question and then thrown it up in court in the hopes that it would elicit a good answer. If she were to do that, she'd be in big trouble with the judge and perhaps, down the road, with an ethics panel as well. What we do not yet know is where Mackey got the information upon which her question was based, how strong the information is, what prosecutors ultimately will say about it, and how relevant it will turn out to be at trial.
Therefore, if you heard last week on television from other talking heads that the charge made by Mackey was necessarily "bogus," don't believe it. It may turn out to be bogus, it may turn out not be bogus, but the truth is that no one now knows for sure except for the alleged victim herself.
Why do prosecutors now want to close the hearing to the public after being so dead-set in favor of an open process earlier in the case? Easy. Because now the defense has made it clear that it intends to try to elicit testimony at the hearing that is designed to harm the credibility of the alleged victim. So long as prosecutors thought the "probable cause" hearing would be a Kobe bash-fest, they were all in favor of "openness." After all, the preliminary hearing is the first best chance to impact the minds of potential jurors in the case.
But now that journalists are talking about whether the alleged victim had multiple sex partners just before she met Bryant, "openness" isn't so important to prosecutors. I don't blame them for taking these seemingly contradictory positions. But in a perfect world, the district attorney might have better anticipated what his defense counterparts were going to focus upon during the hearing and, being forewarned, might have better managed how the case has so far unfolded to the public. For example, you would think that prosecutors knew or should have known that Mackey would ask that whopper of a question and, knowing this, might have tried to work out a deal beforehand to ensure the question never saw the light of day.
What should we expect in court on Wednesday? It depends entirely upon whether Eagle County Court Judge Frederick Gannett decides to close the rest of the preliminary hearing. If he does, Wednesday ought to be a relatively tame day, at least for those of us not directly involved in the case.
Under this scenario, the hearing would take place in private, under seal, and we would learn it was over once it was over. The hearing will be sealed, I think, only if prosecutors and defense attorneys cannot come to some sort of an agreement about which subject areas are off-limits. But I'm still hopeful that the hearing will be open and, if it is, look for Wednesday's festivities to be long in duration and rich in detail. I don't think the defense got to the heart of its cross-examination last Thursday — Mackey didn't even ask a single question about what may have happened between Bryant and his accuser on June 30. And once the defense is done prosecutors will get to re-examine their witness.
So if you think you have lots of questions now, wait until Wednesday afternoon. This seems like one of those rare cases where the more answers that come, the more questions are asked.
By Andrew Cohen