Why the case will go on

Despite setbacks for the prosecution, the case against Kobe Bryant will go on. Here's why.

Updated: August 25, 2004, 10:30 PM ET
By Roger Cossack | Special to ESPN.com

How can the Kobe Bryant case be going to trial? You mean they're not going to drop it? Why doesn't he just pay her the money and have her go away? Didn't I hear you say on SportsCenter a couple of weeks ago that this case was all but dead?

Kobe Bryant
Bryant
The answer to the last question is, unfortunately, yes. But as that great philosopher Yogi Berra said, "It's tough to make predictions, especially about the future."

I don't think the district attorney or the accuser wants any part of this criminal trial. The DA tipped his hand Aug. 11 when prosecutors requested an indefinite continuance, arguing that the judge's rulings regarding the accuser's sexual history -- as well as the mistaken release of closed-door testimony -- would so prejudice the jury pool that it would be difficult to find an impartial jury. That is as close as you will ever hear a prosecutor come to saying he simply cannot win the case.

The accuser also showed that she has lost confidence in the criminal proceedings by filing a highly publicized civil action against Bryant in the Denver Federal Court. She feels that things are so bad for her in her own hometown that she wants her claim for money damages heard by the citizens of Denver rather than those from Eagle/Vail who presumably know her and her family. To make the point even more starkly, her father wrote a letter to the judge in the criminal trial, District Judge Terry Ruckriegle, telling him what a poor job he has done and how he favors the defense over the prosecution. To make things worse, the letter was published on the front page of the local newspaper.

But here is why they can't get out. The name of this matter is: People of Colorado v. Kobe Bryant. We call the young woman "the accuser," but in legal terms she is the complaining witness. She receives a subpoena to testify just like any other witness. And like any other witness, if she fails to show up or refuses to testify, she could be held in contempt of court for failing to follow a court order. Even if she wanted to, she cannot call Bryant's lawyers and say "give me umpteen million and I'll go away." That is a crime, and it would be a crime if Bryant's lawyers called her and made the same offer.

The DA has the power to dismiss the case. But after a year of hearings, and a great deal of public money spent preparing for trial, it would be political suicide for him to do that. He is better off trying it and losing it. Actually, I think he was preparing an excuse for that eventuality by asking the judge for the continuance. Every lawyer knew that request would not be granted and it wasn't.

The DA cannot get into the civil arena either. That battle is between the accuser and Bryant and that battle is over money. This is a criminal case and the penalty could be prison. If the DA dismisses this case, he will have to go into open court and explain why. It is clear that there is no love lost between the DA and the judge. I bet if the DA tried to dismiss this case, the judge would put cameras in the courtroom and make him do it in front of the entire country.

So that's it. If you could get all of the parties in a room with no one else watching, it's probable that they would all agree that none of them want to go to trial ... the DA, the accuser and certainly not Bryant. Jury selection begins Friday. It's way too late to back out now.

Roger Cossack is ESPN's legal analyst.

ALSO SEE