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Why prosecutors should dismiss Bryant case

Why dismissal may be bittersweet for Bryant

By Jonna M. Spilbor, FindLawexternal link Columnist
Special to CNN.com


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(FindLaw) -- Jury selection is in the sexual assault case pending against NBA superstar Kobe Bryant is slated to begin on August 27.

Given the time pressure, you might think prosecutors would be busy lassoing last minute witnesses, marshaling their evidence, and generally making final preparations in such a high profile, high stakes case. After all, the single charge facing Bryant could land this celebrity husband and father behind bars for life.

But if you thought that, you'd be wrong. Despite thirteen months of preparation -- which included nearly twenty days of pre-trial hearings, as well as over seven hundred filed court pleadings -- prosecutors have abruptly tried to put on the brakes.

On August 10, they filed a motion for a continuance seeking to postpone the trial date. The motion was promptly denied. As it stands, the trial is slated to begin right on schedule. And rightly so.

It strains credibility that prosecutors could need still more time than they have had. Thus, their request seems prompted not by genuine need, but by fear of losing -- fear sparked by recent developments in the case.

These developments not only ought to help Bryant's defense, they actually suggest he is very probably innocent. In light of the evidence, the chance of a conviction -- of a jury finding Bryant guilty beyond a reasonable doubt -- is slim indeed.

At this point, with trial impending, the smartest thing for prosecutors to do now would be to dismiss their case outright. But if they do, should Bryant rejoice? One might think the words "case dismissed" would be music to Bryant's ears. But for reasons, I will also explain, that's not the case.

Development: Evidence suggests sex with second man

The results of hospital tests performed on the accuser were recently made public. Expert analysis of the test results suggests Kobe's accuser had sex with a second man within a day -- possibly within hours -- of the alleged rape.

This evidence gives the defense credibility: This is what they have maintained all along. It sounded kind of implausible, then. Now it has the ring of expert validation.

This evidence also gives the defense ammunition: Now, it may be unclear which of the two men caused any bruising or other injuries to the accuser.

Indeed, the defense may even suggest the accuser might have been raped by the other man, and opportunistically tried to get the big bucks by pinning the charge on Bryant.

Consensual sex after rape very atypical behavior

In addition, if the accuser had sex with another man shortly after the incident with Bryant, the defense can argue that this would be extremely atypical behavior for an actual rape victim -- and thus that the accuser is lying, and was not a victim at all.

This incident is claimed to have been a very traumatic, violent rape. According to the complaint in the civil case the accuser has filed, Bryant "physically restrained her against her will" as he was "choking her with his hands" and "bending her over a chair" -- to the point where she perceived the "threat of potential strangulation if she resisted."

After such a violation, what victim would go and have sex with another man? Many rape victims have difficulty having sex at all afterward -- even when time has passed. They are plagued by flashbacks and other manifestations of trauma.

Suppose, though, that this victim was different -- and she sought consensual sex for comfort or emotional support, or to "take back" the sex act from her rapist. Even so, wouldn't she have refrained from having sex before her rape kit was done?

Common sense suggests that a victim of violent rape who manages to keep her wits sufficiently about her to contact the police soon after, would also have the wherewithal to refrain from tainting evidence of the rape with extraneous DNA. For that matter, any man who would engage in sex with woman bearing visible signs of trauma ought to think better of it.

Second man evidence properly ruled admissible

Unsurprisingly, the judge ruled that the defense will be allowed to use this information at trial. And earlier this week, the Colorado Supreme Court refused to hear the prosecution's appeal of this ruling.

Both of these judicial decisions entirely were correct: This evidence is plainly exculpatory -- it tends to directly suggest Bryant's innocence, and even may suggest another man is guilty. Thus, it is unquestionably admissible. At the very minimum, it was well within the judge's discretion to admit this evidence. An appellate judge should not be overturning that call.

Amazingly, the prosecutors claim this evidence justifies a continuance -- not because it exists, but because it recently became public. But the judge gave the right answer: Too bad.

Guess what, prosecutors: In a public trial, admissible evidence is going to become public -- at trial or before. This evidence should have been no surprise to prosecutors, who have their own experts. They have had plenty of time to prepare. And the law doesn't provide prosecutors time to try to counter-spin in the media when evidence comes out suggesting the person they indicted is innocent.

Civil suit: is vote of 'no confidence' in prosecution

Another development in the case is that, as noted above, the accuser has sued Bryant for sexual assault. She is seeking monetary damages -- including punitive damages.

The fact of the suit is not surprising -- especially since Bryant is a high-profile, deep-pockets defendant. But the timing of the suit is surprising indeed, especially since the statute of limitations on the civil suit is nowhere close to running out.

Generally, victims wait until a criminal conviction before suing. There are several reasons why. A guilty verdict in the criminal matter -- where the burden of proof is far greater -- makes a civil case much easier to prove. Indeed, once convicted, a defendant will often capitulate, paying a large settlement because he knows he won't win the civil case.

So why did the accuser jump the gun on the civil suit? Unfortunately, none of the explanations is good for either the prosecution or the accuser.

The accuser and/or the prosecution may have wanted to get her story out there -- to taint the jury pool, and provide some much needed counter-spin. Or she may anticipate a loss at trial, or a dismissal -- and she may understand that an acquittal might destroy her civil case, and even a dismissal might hamstring the case.

Let's be blunt: If the accuser expected a conviction, she'd have waited to sue. And if even the alleged victim herself doesn't expect a conviction, how likely is it that a jury will vote unanimously for one?

Suing bolsters defense claim

For the prosecution, the filing of the civil suit is more bad news. The defense has argued, and intends to keep arguing, that the accuser is lying to make money.

And the theory has some legs. Already, the accuser has received nearly $20,000, the maximum amount allowed to a crime victim in Colorado, from the state's victims' compensation fund. Doubtless, the defense attorneys will make much of this fact at trial.

Now that the victim has sued to get even more money, jurors may wonder: How much money does she want? And how much role is her claim for cash playing in this case?

What if Bryant never gets his day in court?

Here's what should happen now. Prosecutors should look into the camera and explain, "In light of the expert evidence that has surfaced, We, the People, are no longer comfortable pursuing the horrific claims made by our young accuser. We greatly regret not having done a proper investigation before arresting a celebrity defendant who very well may be innocent of the heinous charge."

That sort of thing only happens in Hollywood.

But even if prosecutors don't own up to their reasons -- and apologize for their missteps -- they may still dismiss the case. If they do, Bryant will walk free: No more court days, sleepless nights, or billable hours.

But the taint of this case may linger.

In general, a defendant -- for obvious reasons -- will happily consent to a dismissal of his case. Only the most brave or foolish go forward, confident they can prove their innocence. Bryant has other matters to attend to -- his career, his marriage, his family -- and so it's exceedingly unlikely he'll refuse to consent to the guarantee of freedom from incarceration.

But it's worth noting for Bryant, there are some downsides to dismissal.

For one thing, he has invested a year of his life -- and probably immense sums of money -- in the hope of vindicating himself. Odds are, at trial, he would get that vindication.

Granted, juries are unpredictable -- but he could always waive his right to a jury trial and request that he be tried in front the judge. And there is just too much evidence for Bryant's innocence, I believe, to convince twelve jurors he is guilty beyond a reasonable doubt.

There's another advantage to going to trial: The accuser would have to take the stand, reluctantly or otherwise, and tell her story -- thereby preserving her testimony for all eternity. Every discrepancy, every misstatement would be recorded for use against her in her civil trial. If her testimony was weak enough, the civil suit might disappear -- or be settled for a pittance.

Some other states provide that a defendant may move the court to make a finding of "factual innocence" in the event he is charged but not convicted of a crime. Unfortunately for Bryant, Colorado does not appear to be one of them.

Rule 48 of Colorado's Court Rules does at least require prosecutors to get the court's consent to the dismissal, and to file a motion "open to public inspection" giving the reasons for the dismissal.

But that's cold comfort for Bryant. These prosecutors aren't going to admit the real reason for a dismissal (probable innocence), any more than they admitted the real reason they sought a continuance (panic due to strong evidence of probable innocence).

The bottom line is this: If prosecutors decide to dismiss the case, Kobe Bryant will deserve the most sincere of apologies -- and perhaps a resignation or two as well. But he won't get them. What he will get is a civil case that he may have to settle for lots of money.

If there's any justice at all in this, I have yet to notice where it might be.

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Jonna M Spilbor is a frequent guest commentator on Court-TV and other television news networks, where she has covered many of the nation's high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney's Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units. In 1998, she earned certification as a Court Appointed Special Advocate with the San Diego Juvenile Court. She is a graduate of Thomas Jefferson School of Law, where she was a member of the Law Review.


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