by John M. Curtis
(310) 204-8700

Copyright October 11, 2003
All Rights Reserved.

aking the offense in Kobe Bryant's preliminary hearing, Eagle County presented its best evidence, placing Det. Dough Winters on the stand, reading a transcript of the alleged victim's videotaped statement. According to the accuser's story, Kobe raped her after engaging in consensual foreplay, somehow subduing her by grabbing her around the neck, bending her over a chair, freeing one hand to pull down her panties and then penetrating her from behind. Kobe's known for many on-the-court moves but the acrobatics necessary to pull off this scenario defies the imagination. Most rapes occur frontally, while rapists overpower victims, spreading limbs and doing their business. At Kobe's insistence, she promised not to tell anyone. After the five-minute episode, the victim somehow freshened up in Kobe's bathroom and returned to the front desk where she apparently confessed to hotel's bellhop.

      Many legal experts expected Kobe's attorney Pamela Mackey to waive the preliminary hearing, fearing adverse publicity from graphic details aired in court. Mackey seized the opportunity to begin the methodical process of introducing reasonable doubt by impeaching the prosecution's case, its unnamed and missing victim, and messenger, Det. Winters. Just as the prosecution shocked the courtroom with gruesome details, Mackey dropped a bombshell. Under sharp cross-examination, she skillfully introduced the defense's “theory,” asking Winters whether the victim's injuries were “consistent with a person who has had sex with three different men in three days,” prompting Eagle County Judge Frederick Gannett to call an immediate recess, summoning attorneys to his chambers. Given a very narrow seam, Mackey landed a powerful shot, giving the defense a leg up.

      Mackey's rejoinder followed Winter's presentation of hospital photographs, showing minute scrapes to the victim's genital area, only visible to the naked eye with dye-enhanced and magnified images. Scrapes and bruises—to the genital area or elsewhere—suggest rough or frequent sex but can't, by itself, answer the question of consent or intent. With an allegation of sexual assault or rape, scrapes and bruises certainly create unfavorable inferences to judges and jurors, forming key impressions about guilt or innocence. “She talks [about] how Mr. Kobe Bryant grabbed her neck and choked her,” noted Mackey, asking Winters to acknowledge the absence of physical signs of violent struggle. Though the threshold of proof is low for a preliminary hearing, Judge Gannett must still make a crucial determination whether the evidence warrants going to trial.

      Lurking in the background, yet missing from the evidence, are the accuser's psychiatric records, showing recent hospitalizations for depression and suicide attempts. Those records go the heart of the accuser's credibility, whose psychiatric history gives the judge a reasonable basis for evaluating the state's case. Based on the accuser's story and state's evidence, including hospital photographs documenting her lack of injuries, the two don't go together. She's accused Kobe of violent rape, grabbing her neck and shoulders, bending her over a chair and somehow penetrating her from behind. Based on her story, it's inconceivable without the accuser's consent that Kobe could have pulled off the feat, leaving her without verifiable wounds to neck, shoulders, back and face. “Long story short, she states that he raped her,” said Winters, defying both the evidence and the convoluted story of how the alleged incident occurred.

      Prosecutors are making much ado about the accuser's blood found on Kobe's T-shirt. Former OJ Simpson lead prosecutor Marsha Clark called the evidence “very compelling,” despite the fact that “blood evidence” in this case means absolutely nothing with respect to intent or motive. Kobe's insisted from the get-go that his sexual encounter was entirely consensual. Spot-bleeding and trace amounts of blood are commonly found during and after intercourse. Based on the awkward and complicated manner in which the accuser says the “rape” occurred, Kobe would not only have required consent but full and active cooperation to pull off such an act. “So far the prosecution case is weaker than expected,” said Craig Silverman, a former Denver deputy district attorney, observing the proceeding in the courtroom. Because of the delicate nature of rape cases, it's easy to find inconsistencies.

      Despite the state's best evidence, Pamela Mackey served notice that the case is far from bullet proof. After getting a shocking account of the accuser's statement, Mackey reminded the judge that there are other explanations for the alleged injuries, no matter how microscopic. Asking whether her wounds might also be “consistent with a person who has had sex with three different men in three days,” Mackey threw Judge Gannett for a loop, eliciting audible gasps in the tension-packed courtroom. While Gannett considers his options before resuming Oct. 15, he should also reconsider reviewing the accuser's psychiatric records, an important missing link before proceeding to trial. Admitting that the accuser went willingly to Kobe's room and engaged in “mutual flirting” already raises serious doubts. Reviewing the accusers psychiatric records should resolve lingering questions about the evidence and her incredible story.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

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