Politics & Policy

Flagrant Fouls

Team Kobe smears the victim.

Criminal-defense attorneys who were hoping Kobe Bryant’s defense team might rehabilitate their collective reputation found no succor in the outrageous antics recently unveiled in Eagle, Colorado. The defense’s performance in Bryant’s preliminary hearing did nothing to heighten Bryant’s reputation, and only highlighted the unscrupulousness of too many members of the criminal-defense bar.

#ad#The hearing overall was highly damaging to Bryant. Doug Winters, an Eagle County sheriff’s detective, testified that the accuser told him Bryant violently pinned her over the back of a chair while he raped her in his hotel room. Investigators found blood on her underwear and the inside front of Bryant’s shirt. The woman suffered a vaginal tear, an injury that an examining nurse found inconsistent with consensual sex. Yesterday, the judge found there was probable cause to bind Bryant over for trial.

Many legal analysts speculated that Bryant would waive his right to the hearing precisely to avoid this sort of adverse publicity. Preliminary hearings are generally not mini-trials conducted over multiple days, but rather brief affairs (often lasting half an hour or less) in which the state is required to demonstrate merely that there is probable cause to believe the defendant committed the crime. But Bryant’s attorneys adroitly seized on this largely perfunctory hearing as a weapon to wield in the public-relations war.

The lead defense attorney, Pamela Mackey, promptly put the alleged victim on trial. Six times, Mackey referred to the accuser by name. This was a direct violation of a court order sealing the victim’s name. Mackey’s offensive reached its peak when, in discussing the vaginal tear, Mackey asked the detective if the injuries could be “consistent with someone who had had sex with three different men in three days.”

At that point, the judge called a recess and postponed the hearing until the following week. In the interim, prosecutors filed a motion accusing the defense of trying to “smear the victim publicly.” No less than Saturday Night Live seconded the state’s motion, ridiculing Mackey in a skit by stating her name and that of her law firm (the firm was subsequently overwhelmed with calls).

In the second part of the hearing, concluded last Wednesday, Mackey adopted a less-confrontational tone, and even managed to cease stating the victim’s name. She focused on the fact that the day after the alleged rape, when the accuser submitted to a medical examination, the underwear she wore to the examination contained semen and pubic hair that were not Bryant’s. The defense glossed over the fact that the underwear in question was not the same pair the accuser wore on the night of the alleged assault (the pair with blood on it). That the second pair she wore to the examination was not properly laundered hardly impeaches her testimony. But Mackey’s evidentiary shell game, a sleight-of-hand typical of defense attorneys, provided yet another way for the defense to improperly raise the alleged victim’s sexual history in open court. The defense pointed to the second underwear as providing some sort of sweeping exoneration for Bryant, when actually it was a fact of such scant relevance that one can question why the judge allowed this testimony to be aired at all.

These defense tactics were not only disgraceful but borderline unlawful. Under Colorado’s rape-shield law, the sexual history of an alleged rape victim is not admissible at trial except under carefully controlled circumstances. The defense first must give prosecutors thirty days’ written notice that it intends to introduce such evidence. The judge then must rule in advance that such evidence is relevant to the case. Instead, Mackey broadcast this evidence across the country by injecting it into the preliminary hearing rather than the trial. She capitalized on the fact that the rape-shield law does not specifically address preliminary hearings, presumably because defendants rarely use these forums for anything substantive.

The prosecution was outraged at this skirting of the law and ethical rules. In their motion, the prosecutors noted, “To allow the defense to address sexual history matters of a victim at a preliminary hearing, in open court, which are later deemed inappropriate evidence at trial, would completely abrogate the rape shield statute and its purpose.” Former Denver district attorney Norm Early accused Mackey of teeing up the preliminary hearing event simply to “smear the victim.” He added, “No one thought the defense would stoop that low.”

The defense’s bare-knuckled intimidation tactics suggest Kobe Bryant and his attorneys are prepared to resort to virtually any deplorable stratagem or distraction to win. The old tactic of casting an alleged rape victim as a slattern who invited sexual aggression has been around for centuries because, unfortunately, it resonates with certain potential jurors. Still, this is a high-risk approach. If the accuser is a credible witness who presents herself well at trial, this tactic can backfire tremendously.

The hearing also crystallized just how lop-sided the criminal-justice system has become in favor of the defendant. Decades of solicitude for criminals from the federal judiciary has resulted in a steady heaping of rights and privileges for defendants. As any television viewer can now see, defense attorneys can get away with virtually any lowball trick they employ, short of outright violation of black-letter law or ethical rules. And even when they do commit such offenses, their clients emerge unscathed, as any penalties affecting the defendants themselves would impair their rights to counsel and a fair trial.

For perspective, consider the opposite scenario. What if the prosecution knew Bryant had committed other crimes or bad acts? What if the prosecution also knew that such evidence might well be inadmissible at trial–but chose nonetheless to raise this prior history in the preliminary hearing just to communicate this information to potential jurors? Undoubtedly, the offending prosecutors would be looking down the double barrel of sanctions from the judge and disciplinary proceedings from the state bar. The entire case against Bryant would be hanging by a thread. Mackey, by contrast, likely will get off scot-free, and her cleverness already has earned her greater admiration from fellow members of the criminal-defense bar.

That criminal-defense lawyers routinely get away with such rough tactics is not a celebration of the American system of justice or the Bill of Rights, as attorneys are wont to argue. It is rather a harsh reminder that defendants confronting strong, physical evidence of guilt can count on the criminal-justice system to even things up–namely, by showing greater concern for the rights of defendants than for the welfare and dignity of their victims.

Andrew Peyton Thomas is an attorney and author in Phoenix.

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