Alleged victim subpoenaed for hearing
Prosecutors plan a counterstrike against Kobe Bryant’s attorneys, who are trying to force the basketball star’s alleged sexual assault victim to testify at his preliminary hearing Oct. 9.
Krista Flannigan, spokeswoman for the District Attorney’s Office, said Monday that they could move as soon as today to quash a subpoena by Bryant’s defense attorneys, Pamela Mackey and Harold Haddon, who want his alleged victim to testify at the hearing.
“There will be a motion to quash and it will be filed very soon, in the next couple of days,” said Flannigan.
“They want to question her at the preliminary hearing to get her version of the incident,” said local attorney Rohn Robbins.
A subpoena is a legal demand that requires the recipient to appear in court to testify. Robbins said it’s common for defendants to be subpoenaed in criminal cases.
Legal chess game
Defense attorney Scott Robinson, who just won the Kathy Denson murder case in Eagle County Court, said most cases involve a number of chess-like moves.
“It’s very serious and it’s not a game, but the analogy remains the same,” he said. “The defense makes the move. It’s blocked, or not, and they make another.”
By issuing a subpoena to the alleged victim, the defense has made a move, Robinson said.
“If it’s blocked and she doesn’t have to testify, I’d consider waiving the prelim and just taking the case to trial,” said Robinson. “For Haddon and Mackey to get anything at all out of this preliminary hearing, they have to have a crack at the prosecution’s star witness.”
Robinson explained that in a preliminary hearing, the lead detective, or any officer, is called to testify. That person recounts what everybody said, including doctors, witnesses, other officers and anyone else who has anything to say officially.
And while that’s all very informative, Robinson said it’s not going to give the defense team any new information.
“You don’t gain anything by cross examining a Doug Winters or a Mike McWilliam (both Eagle County sheriff’s investigators),” said Robinson. “You want a jury-free opportunity to cross examine the prosecution’s star witness. You might get to try things you wouldn’t if you were in front of a jury and the trial judge,” said Robinson.
While Mackey and Haddon can subpoena the alleged victim to appear at the preliminary hearing, Robbins said the chances of them succeeding are remote.
“It is unlikely they will be successful,” said Robbins.
In a preliminary hearing, the bar is fairly low, Robbins said. The prosecution only has to show that there is probable cause to move the case along to the District Court level, where the trial would be held.
With testimony from investigating officers, affidavits and medical evidence, the alleged victim is probably not necessary for the district attorney to present enough evidence to bind the case over for trial in District Court.
“She is not essential for them to show probable cause exists,” said Robbins. “I really doubt they need her there.”
But, cautioned Robbins, showing probable cause is just the next step.
“That’s not nearly as difficult as proving the case beyond a reasonable doubt at a trial, as they’d have to prove before a jury,” he said.
What they mean
– To have a case bound over for trial from Eagle County Court to District Court, the prosecution must prove that there is probable cause that the crime has been committed and that the defendant committed the crime.
– Probable cause means having more evidence for than against the likelihood a crime was committed.
– A subpoena is a command to appear to give testimony in a specific matter. Defense and prosecution can both subpoena people if those people have evidence relevant to the case.