What was she up to? | VailDaily.com

What was she up to?

Rohn K. Robbins/Special to the Daily

If you’ve been following the bouncing (presumably basket) ball of the Bryant case (and who has not?), you are likely at least passingly aware of the outrage engendered in at least a portion of the legal community over the performance of Pamela Mackey, one of Mr. Bryant’s lawyers, during round one the preliminary hearing.

What you may be wondering is “What is all the fuss about?” “Why do so many legal commentators have their collective legal undies (or briefs, I suppose) in such a bunch?”

If you’ll allow, let me paint the landscape for you.

Mrs. Mackey’s sins, in the eyes of those at least who witnessed “sin” in her performance, were twofold.

First, Mrs. Mackey invoked the name of the alleged victim on half a dozen separate occasions. More on that in a just a jiff.

Second, Mrs. Mackey asked a question that shook the courtroom and that many believe was inappropriate – that being a tawdry intimation of the alleged victim’s sexual profligacy.

In order to understand the tempest stirred up by Mrs. Mackey’s comments, you have to place her alleged breaches in context. In this circumstance, the contexts are, again, twofold. First, Colorado’s Rape Shield Statute, and second, Judge Gannett’s “decorum order.”

The Rape Shield Statute, specifically Section 18-3-407, Colorado Revised Code, provides, in relevant part, that evidence of specific instances of the victim’s or a witness’ prior or subsequent sexual conduct, as well as reputation evidence of the victim’s or a witness’ sexual conduct, shall be presumed to be irrelevant except in specifically identified circumstances. Irrelevant evidence is not admissible.

The exceptions to this exclusion are: 1) evidence of the victim’s or witness’ prior or subsequent sexual conduct with the actor (that is, the accused); and, 2) evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease or any similar evidence of sexual relations offered to show that the act or acts charged were not committed by the defendant. In this two narrow instances, evidence of the victim’s or witness’ sexual conduct and-or reputation is considered to be relevant and is, therefore, admissible.

If the above exceptions do not apply, the defendant may, by written motion to the court presented at least 30 days before trial, make an “offer of proof” of the relevancy and materiality of evidence of the victim’s or witness’ sexual conduct or sexual reputation, or that the victim or witness has a history of false reporting of sexual assault.

In other words, the defendant can try to overcome the presumption of irrelevancy by showing why, in this particular circumstance, evidence of this victim’s or this witness’ sexual conduct, reputation or history of false reporting should be permitted to be heard. The written motion must be accompanied by an affidavit in which the offer of proof shall be stated.

In the instance of the Rape Shield Statute, since there is a presumption that the evidence will be excluded at hearing unless it qualifies under one of the exceptions, the evidence that is presumed to be irrelevant may be presented to the court by way of an offer of proof before the hearing begins in an attempt to convince the court that in this particular instance, the evidence is, in fact, relevant.

If the court finds the offer of proof to be sufficient, the court must notify the other party and set a hearing to be held in camera prior to trial. “In camera” means in the judge’s chambers; that is, not in the courtroom, not in a public proceeding.

In asking of Investigator Winters if the alleged victim’s injuries could have been caused by her having had sex with three different men in three days, not only may the spirit of the Rape Shield Statute have been violated, but the strict procedural aspects of the law may have been violated, as well.

At the least, many in the legal community believe that had the defense wished to pursue this line, the matter should have been raised in chambers rather than in open court.

In issuing its “decorum order,” the court spelled out that regarding the alleged victim’s name, “All persons are advised that the privacy of the alleged victim is of significant importance to this court. Consistent with Colorado law, the media and all other persons are encouraged not to … disseminate the image or name of such person.”

Allowing for inadvertence, few would likely blame Mrs. Mackey had she suffered a single slip of the tongue in uttering the alleged victim’s name. With half a dozen repetitions, however, many believe that her “lapses” were intentional, flagrant and, accordingly, inappropriate.

Many hold that Mrs. Mackey’s actions had to be intentional and that the purpose was to: 1) deflect attention away from Mr. Bryant and onto counsel; 2) “ramp up” the smear campaign that many believe has already begun against the alleged victim; or 3) to send a clear, decisive message to the alleged victim that the rough and tumble has just begun. Perhaps there are elements of all three.

What many believe, too, is that these kind of tactics have no place in the courtroom, that there is a line which may not be crossed between hardball and furball tactics.-

It is unequivocal that a lawyer must be a stern advocate for his or her client, but each must also do what’s right and must not permit the possibility of a short-time advantage to undermine the purpose and intent of the laws.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. He may be reached at 926-4461 or at his e-mail address: robbins@colorado.net

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