Court gaffes didn't help case

9/2/2004 - Kobe Bryant

EAGLE, Colo. -- In essence, the writing was on the wall.

The last-minute dismissal of the Kobe Bryant rape case followed months of gaffes by courthouse staff that put his 20-year-old accuser in an uncomfortable spotlight and a determined, well-financed legal assault from the NBA star's defense team.

Legal experts say the prosecution also had a very difficult case
to prove -- a he said-she said in which the accuser told investigators she willingly flirted with Bryant and engaged in consensual kissing, and there was looming DNA evidence suggesting she slept with someone not longer after leaving Bryant's hotel

"What seems very apparent is the prosecution made missteps
early on," said Denver attorney Lisa Wayne, who has defended
numerous sexual assault cases. "They never got to know this

During a news conference after the dismissal, District Attorney
Mark Hurlbert said he was confident that if a jury were to hear the
alleged victim testify, Bryant would be convicted.

"The prosecution wants to try this case. I want to try this
case," he said. "However, the victim has informed us after much
of her own labored determination that she does not want to proceed.
For this reason and this reason only I am dismissing the case."

Wendy Murphy, a professor at the New England School of Law,
Boston, said Hurlbert was just trying to shift responsibility.

"It's a different way of blaming the victim, it's the
government sloughing off onto the victim the failure of the justice
system," she said. "It's the prosecutor's job, it's the
government's responsibility to pursue this."

Bryant's attorneys were relentless, challenging everything from
using the word "victim" in court to seeking to have her mental
health history and sex life admitted as evidence.

A key blow to the prosecution came just last month when District
Judge Terry Ruckriegle agreed that the woman's sex life in the
three days before her hospital exam could be admitted as evidence
at trial. The defense said the woman had sex after leaving Bryant
and before the exam, a claim her attorneys denied but one that drew
widespread publicity before jury selection began.

Defense attorney Larry Pozner said prosecutors and investigators
made a fatal mistake by arresting Bryant and filing the charge
before having full knowledge of the alleged victim's activities and
the DNA test results.

"The defense kept pulling in dump trucks full of evidence until
they [prosecutors] drowned in bad facts," he said. "Any time you
see the defense ahead of the prosecution it can only be because the
prosecution didn't want to know something.

"The prosecution said 'Let's not do anything that could hurt
us,' " Pozner said. "That's not a search for justice, it's a
conviction-at-any-cost mentality. Sometimes the bravest thing you
do is look at your police and say we don't have a case."

The case was also marred by a series of mistakes, many of them
by people the woman's attorneys said she trusted the most. The
accuser's name was included in filings mistakenly posted on a state
court Web site and a court reporter accidentally e-mailed
transcripts of a closed-door hearing on the woman's sexual
activities to seven news organizations, which published the details
after winning a First Amendment court fight with the judge.

Within those transcripts was a prelude of what would come at
trial: Testimony from a defense forensics expert who said she was
convinced the accuser had sex with someone else soon after leaving
Bryant -- a claim that goes to the heart of the woman's credibility
and her image as a traumatized victim.

As it turned out, those mistakes were fatal to the prosecution's
case. The woman's attorney, John Clune, said they were key to her
decision to drop out of the case.

Prosecutors even suggested their case wasn't a powerhouse, with
prosecutor Ingrid Bakke telling the judge in June that plea
negotiations might hinge on his decisions in key rulings. they lost
one of those fights when the judge admitted the woman's sexual

Hurlbert, who declined to answer questions after his brief
appearance before a throng of reporters, said he admires the
alleged victim and her family, and respects her decision.

"Today justice is sadly interrupted. The casualty in this
interruption has been a brave young woman who was grievously
hurt," Hurlbert said. "Candidly, this team and I understand why
she might have misgivings."

A civil lawsuit is still pending against Bryant in Denver
federal court.