Waiting to pull the pin | VailDaily.com

Waiting to pull the pin

Don Rogers

Maybe Pamela Mackey has evidence behind that crack last week in court about injuries coming from sex over three days with different men rather than the accused, Kobe Bryant. And maybe she doesn’t – although it’s unfathomable from the peanut gallery’s vantage that this accomplished attorney would soil her own reputation in a preliminary hearing with a factless as well as tactless leading question of the detective relating Bryant’s alleged victim’s story of what happened late evening June 30 in the ballplayer’s hotel room.

Criticism of her tactic has been taken among some of Bryant’s apologists as tantamount to declaring the kid guilty of a crime. They’d do well to read columns in this space more carefully. Nuance might not be their forte, so we’ll try to type s-l-o-w-l-y: Attorneys of the innocent can screw up, too. OK?

The mistake in this case would not be so much in raising such a point in direct connection to the young woman’s injuries, which require magnification and color enhancement to see, but in dropping the question in open court without clearing it with the judge. Why the need to clear it? Because the question steps all over Colorado rape shield law.

The larger mistake was exposing her client to a more sensational story in court than the media has managed to produce. And that’s a feat. Still, it’s just a story to this point, her story. And the evidence produced thus far falls something short of conclusive. Some wags have even begun debating the size of the truck they could drive through it.

But the preliminary hearing is largely the prosecutors’ show, and their bar for evidence is low. It’s not until a trial that they must overcome “reasonable doubt” about Bryant’s actions that night.

For the defense, contesting the case now carries a near reversal of the standards for the prosecution. To stop it here, the defense as a practical matter has to show Bryant could not possibly have done what he is accused of doing. They must prove his innocence to avoid a trial, at which of course the prosecution must prove his guilt beyond question. At trial, that’s harder to do with the nature of the injuries – and lack of injuries – that can be explained in ways other than rape, and with no eyewitness to the event.

If the defense can’t effectively prove Bryant’s innocence now, they’ve made a mistake going through with the preliminary hearing. Doubts they might think they’ve raised about the woman don’t stack up to allowing her version of what happened out in public. Even if it turns out to be just a story.

If Mackey has that legal grenade to blow up the case, it’s time to pull the pin. Because so far, the defense’s decision to drag their client through this prelim appears to be a dud.

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