How the decision to dismiss was made |

How the decision to dismiss was made

Bret Hartman/Vail DailyDistrict Attorney Mark Hurlbert speaks to members of the media last Wednesday during a press conference he gave after dismissing the sexual assualt case against Kobe Bryant.

For District Attorney Mark Hurlbert, the Kobe Bryant case ended the way it started, looking into a bank of television cameras and reporters’ notebooks, insisting he has confidence in his case.

About 11 a.m., Sept. 1, eight hours before Hurlbert met the media for the last time as Kobe Bryant’s prosecutor, he spent an hour on the phone with the young woman who accused Bryant of raping her. It was not the first time she’d told him she could not go on, but it would be the last.

“It was not our first conversation about that,” said Hurlbert. “We’d already had a couple conversations when I implored upon her to reconsider and she said she would.”

Hurlbert said she began to waiver about two months ago. By the time that final conversation came around, she was set in her decision not to go forward.

“She sounded conflicted. She knew the importance of going forward, but was at the end of her rope,” said Hurlbert. “In any rape case, when you’re getting ready to go to trial you constantly check in with the victim and keep her apprised of everything.

“Her testimony was important, but it was never going to get down to one person’s word against the other’s,” said Hurlbert.

Hurlbert said there were other times the alleged victim was not ready to go forward, but always came back. He said early in the case, even through all the harassment and death threats, she was still strong.

“There was so much good, credible evidence in this case. There was certainly other evidence that would have been introduced at trial,” said Hurlbert. “Bryant’s statements have not yet been heard by the public. Her outcry, her demeanor. There was strong evidence, and it was a strong case.

“Compared to other cases I’ve won, it stacks up well,” he added.

He and the other prosecutors put the alleged victim through practice questioning. Hurlbert said she did fine.

When the young woman finally decided she could not go forward, Hurlbert began phoning district attorneys around the state for a little advice. They started reciting case law, and it wasn’t in his favor.

It took only a few minutes to realize that he had two options: subpoena her and force her to testify or try the case without her.

Forcing her appearance and testimony was not a road Hurlbert was willing to take and going to trial without her was not a case he could win, he said.

“We knew we could not prove the case beyond a reasonable doubt without the victim willing to go forward,” said Hurlbert.

Like most of life’s decisions, this one wasn’t complicated, just hard. It’s not the same thing.

When the decision was made, though, he knew it would be his and that he would have to answer for it, he said.

The civil case filed by the alleged victim against Bryant in federal court had no effect on the criminal case, and would not use it as an excuse, he said.

“It was not about the money,” he said. “The civil case would have had no effect.”

When it came to the criminal case, Hurlbert said he was confident he had all his “ducks in a row,” and that he was less undecided about filing the charges and going forward than he was with dealing with all the other issues, such as media.

The media was fair at times, he said, but the legal analysts were far less fair than they should have been.

“It’s easy to Monday morning quarterback and say it was a waste of money, but from the time we filed the charges to when the victim said she could not go forward, we were confident in our case,” he said.

Hurlbert said despite what the talking heads insinuated, they’d won all three major rulings: medical records, rape shield and suppression of evidence.

The defense did not get access to the alleged victim’s medical records, all the physical evidence and Bryant’s statements would be heard by the jury, and the rape shield information was limited to the alleged victim’s sexual activity about 72 hours prior to her rape exam.

Prosecutors say there was no sexual activity. Bryant’s defense attorneys say different.

“The 72-hour window was not a big deal, given all the evidence in this case,” said Hurlbert.

“I can’t think of a rape case where I haven’t done a mock examination,” said Hurlbert. “Between she and (bellman) Bob Pietrack, we had great confidence in our witnesses.”

Pietrack was the first person the young woman told of her confrontation with Bryant in a room at the Lodge and Spa at Cordillera.

Hurlbert had originally planned to take the lead in the Bryant case, right up until a couple Front Range district attorneys suggested he rethink that strategy. They explained that no district attorney tries these cases, that he had four offices to run and 12,000 cases to deal with.

But the Front Range media reported that he’d dropped out, which was news to him as he was spending 16 hours a day that first weekend of the trial helping wade through jury questionnaires.

The price tag will come in somewhere between $350,000 and $400,000, a serious chunk of change. That’s about what Hurlbert said it costs to try a first degree murder case and it’s also less than the $14 million Bryant reportedly spent on his defense.

The district attorneys in Boulder and Jefferson counties loaned him Ingrid Bakke and Dana Easter respectively, and Hurlbert said many experts wanted in for free to cheap “because they believed in our side.”

Hurlbert said the Bryant case is just one of 12,000 that will roll this year through the Fifth Judicial District, which includes Eagle, Summit, Lake and Clear Creek continues. Right now, the caseload includes several pending rape cases and a homicide in Georgetown.

“This has been prosecution at the highest level, dealing with the minutiae of the rape shield law, mental health and medical records,” said Hurlbert. “This level taught me a great deal about defending against attacks on those statutes.”

He hopes the public takes away from Bryant case the knowledge that they have a District Attorney’s Office that will fight for them and respect their rights, he said.

Hurlbert,a Republican who was appointed district attorney by Gov. Bill Owens in 2002, also faces re-election in November. Defense lawyer Bruce Brown, a Democrat from Clear Creek County, is running for Hurlbert’s job.

Given the high profile nature of the Fifth Judicial District, it’s not inconceivable that he could find himself back in the middle of something like this and, he said, he’d do it again.

“Given the information I had at the time, I would file the charges again,” he said. “In any case it’s a constant evaluation based on many things ” rulings, motions, reasonable doubt. It comes down to two things, did a crime occur and can we prove it?

“The people of Eagle County were able to make that distinction based on the evidence and we could have gotten a fair trial in Eagle County,” Hurlbert said. “I still believe we could prove the case beyond a reasonable doubt.”

Randy Wyrick is a writer for the Vail Daily. He can be reached at

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