Evidence, emotion to clash in Bryant trial | VailDaily.com

Evidence, emotion to clash in Bryant trial

Cliff Thompson
AP Photo/Ed Andrieski/PoolKobe Bryant, center, is flanked by his attorneys Pamela Mackey, left, and Hal Haddon as he arrives for a court appearance in Eagle, Colo., on August 6, 2003. Jury selection in Bryant's sexual assault case was scheduled to begin Aug. 27, with opening arguments are slated for Sept. 7.

EAGLE – When jurors in the Kobe Bryant sexual assault case reach a decision about his guilt or innocence, what they decide may be only partly determined by the conflicting and likely sensational presentations they will hear during his trial.Jury selection begins Friday in a case that for 14 months has progressed under intense media scrutiny because it involves a celebrity and sordid details.The case crosses a number of societal thresholds and brushes against slow-to-fade taboos. It involves an African-American man and a white woman; a married NBA celebrity and a troubled, single smalltown girl who has had some mental health and other personal troubles; and it happened in a secluded, upscale lodge in Eagle County. She was an Eagle Valley High School cheerleader and member of her church choir. Last month, she filed a lawsuit in federal district court iin Denver seeking an undisclosed amount of money from the six-time NBA all star.Those ancillary issues, which have been fought over vigorously in pretrial hearings, threaten to overshadow the core issue of the case. The question jurors will answer is this: Did Kobe Bryant rape the then-19-year-old woman? They had sexual contact, but was it consensual? Bryant says it was, and the alleged victim says it wasn’t.”I sit here in front of you guys, furious at myself, disgusted at myself for making the mistake of adultery,” Bryant said in his sole press conference after the charges were filed July 18, 2003. “I’ve been falsely accused of something, and I’m innocent.”His alleged victim, who has tried to avoid the spotlight, did make a surprise appearance at a pretrial hearing. Other than that, she has been conspicuous by her absence from the courthouse.The charges against Bryant are not trivial. If convicted, he faces a prison sentence ranging from four years to life in prison, or 20 years to life on probation; a fine up to $750,000; and in all likelihood, the end of his star-studded NBA career and lucrative product endorsements.The simplicity of the case ends there. Attorneys on each side have engaged in a bare-knuckled pretrial dustup that has tested the constitutional limits of victims’ and defendants’ rights, and it has gone on under the full glare of a media circus, complete with gag orders and national television interviews. Even the victim’s name – normally protected in rape cases – and details of DNA results provided by the defense’s expert witness in a closed hearing were inadvertently made public by the court. And in a letter critical of Judge Terry Ruckriegle, the accuser’s father suggested it would be impossible for his daughter to get a fair trial in part because the judge was too collegial with the defense during pretrial hearings.”This is a much more difficult to prove case of date or acquaintance rape,” said Dave Lugert, trial attorney, television legal analyst and former prosecutor.

“It is much more subtle and more difficult to prove. All elements – where, when and who, and was there sex – are known. The only issue remaining is whether or not the government can prove there wasn’t consent,” he said. “It’s not the kind of thing that is immediately evident and capable of scientific measure.”Jury experts say the makeup and experience of the jury – gender, education level, family background, race and attitudes about the issues raised by the case – is one of the keys to what sort of verdict will be reached. “There are three things you try to do during jury selection,” said Craig Silverman, trial attorney and television legal analyst. “Sell yourself, sell your case, and find good customers for what you’re selling. The best questions work on all three levels.”Making the case”The bottom line is this is about this victim having her day in court before a jury and having the opportunity to persuade a jury she was indeed sexually assaulted,” said Norm Early, victim’s rights advocate, television analyst and former Denver district attorney.It won’t be easy, Early acknowledged. “She’s accused a celebrity of committing a sensitive, act and juries don’t readily convict celebrities without overwhelming proof,” he said. “Hopefully, the case won’t be decided on the defense propaganda that has been made since charges were filed and will be (decided) on what’s presented in the courtroom.”The accuser said Bryant raped her after inviting her to his room after she gave him a tour of the Lodge and Spa at Cordillera, where she worked and Bryant was staying prior to knee surgery in Vail the next day. She alleges that after they kissed and flirted, Bryant prevented her from leaving, then forcefully bent her over a chair and assaulted her while his hands were around her throat. She told him “no” on at least two occasions, she has told prosecutors and investigators.The defense, based on DNA evidence, suggests the accuser had sexual relations immediately before and after the encounter with Bryant. That contact, they say, created more DNA evidence that casts doubt on her claim. It’s the cornerstone of their defense, designed to cast a reasonable doubt on the source of the accuser’s vaginal injuries and DNA evidence.Prosecutors, meantime, are challenging the reliability of the defense’s DNA analysis. The District Attorney’s Office contends the evidence was contaminated and manipulated. A hearing will be held at 10 a.m. today on the matter.The defense, meanwhile, plans to call a Colorado Bureau of Investigation DNA investigator as a witness in the trial.

Was it rape?Ultimately, however, the case will hinge on the what constitutes consent, legal experts say. When did the accuser ask Bryant to stop, and did he? It will take a unanimous jury decision to convict. Anything less and he’s not guilty.”This is about consent in sexual assault and the (jury’s) attitude toward date rape or social rape,” said Scott Robinson, a trial lawyer and television legal analyst. Jurors, lawyers acknowledge, will also be making a moral judgment based on how they feel about the accuser’s activities prior to the alleged assault and also possibly about the issue of a white woman and African-American man.”It really remains to be seen whether the people of Eagle County blame her more because of their distaste for her involvement with a married man or an African-American, or whether they will blame him more for being a married man and preying on one of their residents. Neither should be a consideration for the jury,” Early said. “In reality, either one of them may be.”For prosecutors and defense attorneys, finding sympathetic jurors will be part luck and part careful inquisition. Friday, potential jurors appearing for the trial will be answering a 100-question document designed to determine their suitability for deciding Bryant’s fate. The questions have been compiled by prosecutors and defense attorneys and some will be addressed in a closed court session, others in open court. In a closed court session, potential jurors will be asked if the 14 months of pretrial publicity have shaped their views of the case.Picking a jury”I suspect there will be issues about race, attitude about criminal cases in general and sex assault in particular,” said Robinson. “There will also be generic principles of law and detailed questions about publicity. What facts do they have, where did they get the information? There will be all kinds of oddball questions.”One of the toughest issues for attorneys to determine is a juror’s feeling about race and interracial relations.”That’s a tough issue to flush out,” said Silverman. “Very few people are going to acknowledge they’re racists. It will be hard to flush out.”

Discovering those hidden agendas will be difficult, Lugert agreed. “It takes a lot of analysis,” he said. “It’s very difficult to uncover those feelings in the artificial environment of a courtroom.” Defense attorneys and prosecutors will have to show their cards early. Jury studies show that by the end of opening statements, up to 90 percent of jurors already know how they will decide about the guilt or innocence of a defendant.Fast start”I think their opening statement will be riveting, compelling and will reveal information not previously known to members of the public and jury,” Early said. “You’ll have a situation where jurors will be saying, ‘This sounds like a better case than I thought it was.’ “That can work to advantage of the prosecution,” he added. “We already know what the defense will be saying because it’s been leaked.”The effectiveness of opening statements depends on what jurors choose. But there’s an intangible that cannot be foretold by experts: The personal dynamics among prosecutors, defense attorneys and members of the jury.If jurors connect on a personal level with the lawyers, they’re more likely to be selected.”There’s no substitute for the way they react with you and your story,” said Silverman, “There’s no substitute for the personal chemistry with prospective jurors.”Nearly 1,000 jury summons were sent to county residents and the court is expecting about half that number to appear Friday.Staff Writer Cliff Thompson can be reached at 949-0555, ext. 450, or cthompson@vaildaily.comVail Colorado

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