Bryant Unlikely to Seek a Plea

Publicity generated by the legal proceedings involving Kobe Bryant has not been kind to the Laker star or to the woman who has accused him of rape. A trial is certain to expose more embarrassing details, giving both parties reason to seek an alternative. But experts say a plea bargain is highly unlikely.

There does not appear to be a diminished charge available under Colorado law that would be acceptable to Bryant, his accuser and Eagle County Dist. Atty. Mark Hurlbert -- the three people who must walk away satisfied from any deal.

Bryant has been charged with felony sexual assault, and a conviction could result in prison for life. However, he is not expected to plead guilty to a lesser offense -- legal analysts have mentioned misdemeanor assault or false imprisonment as possibilities -- because a recent change in Colorado law would require him to register as a sex offender even if the reduced charge is not sexual in nature.

Also, Bryant has reason to be buoyed by the strong showing of his defense team at his preliminary hearing, although prosecutors often have more evidence than they disclose at such proceedings. His attorneys, in their rare public comments, have indicated they are going full-speed ahead with trial preparations.

The district attorney has his own reasons to take the case to trial. Hurlbert was appointed to his position in January when his predecessor left office and faces an election in 2004.

He repeatedly has said he believes Bryant is guilty and that an Eagle County jury would agree. Striking a deal that would allow the five-time NBA All-Star to avoid prison could create an impression among voters that Hurlbert backed down.

“The parties have committed to their positions,” said Scott Robinson, a Denver criminal defense lawyer who has followed the case. “Bryant has way too much to lose to take any plea. The prosecutor has way too much to lose in offering any plea.

“[Hurlbert] would rather take the case to trial and lose than be viewed as a quitter by the people of Eagle County.”

Bryant, 25, is accused of raping a 19-year-old hotel worker at an Edwards, Colo., mountain resort on June 30, the night before he had knee surgery. She says he grabbed her by the neck and sexually assaulted her in his hotel room after they had engaged in consensual kissing and hugging. Bryant, a husband and father, says he and the woman had consensual sex.

Analysts say that because consent is the central issue and nobody but Bryant and the woman knows what happened in the room, the outcome of the trial probably will come down to the believability of their testimony, a classic “he said, she said.”

Therein lies the possibility that a plea bargain could at least be discussed -- Bryant’s attorneys as well as prosecutors know a trial can go either way.

“You never say never to a plea bargain, especially in a consent-based sex assault case,” said Bob Ransome, a Denver attorney who has represented dozens of people charged with sexual assault. “New facts are found out, things change as a trial approaches.”

A plea presumably would allow Bryant to avoid a long prison sentence and might also interest his accuser, ending the intense scrutiny of her personal life and allowing her to take aim at a civil settlement. Hurlbert, meanwhile, could salvage something out of a prosecution that analysts said appeared weak during the two-day preliminary hearing.

Under Colorado law, plea agreements do not have to be signed off by the alleged victim. However, prosecutors usually seek the victim’s approval before striking a deal.

Complicating any negotiation is legislation passed in 2002 to close a loophole that had allowed defendants accused of sexual assault to plead to non-sexual reduced charges without registering as sex offenders.

Now, anyone convicted of a felony in which the “underlying factual basis” involves a sexual component must comply with Colorado’s sex offender probation terms -- among the most stringent in the nation. Even pleading to a misdemeanor requires registering as a sex offender, and a judge can order treatment.

Provisions of treatment include almost daily contact with a probation officer, monitored curfew, abstention from drugs and alcohol, payment of restitution and behavioral monitoring.

Only two of 476 people sentenced in Colorado sexual assault cases since 1998 have been freed from prison. And 54 have passed their minimum sentence but are not eligible for parole because they have not completed the treatment program.

“The legislature decided the way to deal with [sex offenders] is to leave it up to the parole department if and when they get out of prison,” said Karen Steinhauser, a University of Denver law school professor and sexual assault expert.

Not surprisingly, Bryant attorney Pamela Mackey responded in August to a report that a settlement was imminent by saying, “There’s just no way we’re going to settle this case. There are no plea negotiations.”

That comment came before Mackey’s cross-examination of a sheriff’s investigator at the preliminary hearing, which was widely viewed as a decisive victory for the defense despite a judge’s finding probable cause and binding the case over to district court for trial. Bryant is scheduled to make his first appearance in front of District Judge Terry Ruckriegle on Nov. 13.

The Lakers clearly want the case to be resolved swiftly. Coach Phil Jackson recently said, “We want this thing to go as quickly as possible and disappear into thin air.”

But analysts say the preliminary hearing probably cemented Bryant’s belief that he can be exonerated at trial -- an outcome that those who know him say is more important to him than pleading to a lesser charge simply to eliminate a distraction for the Lakers and a troublesome public relations situation for the NBA.

What’s more, Bryant’s wealth can’t make the charges disappear. Under Colorado law, a defendant cannot pay his or her accuser not to testify. Attorneys on both sides are free to discuss a civil settlement, but such talks -- or any resulting agreement -- must have no bearing on the criminal case.

“It’s not unusual that a settlement would be discussed before a civil suit would be filed,” Steinhauser said. “But civil has absolutely nothing to do with criminal.”

The chances of the woman’s getting a lucrative civil settlement are enhanced by Bryant’s either being found guilty at trial or pleading to reduced charges. “The most [leverage] she has is the day before trial begins,” former Denver prosecutor Craig Silverman said.

Ruckriegle’s decisions in coming months could increase the chance of a plea bargain -- or end it altogether. Bryant’s attorneys are trying to get admitted as evidence the woman’s medical records pertaining to what authorities have said were two suicide attempts. They will also argue that the woman’s sexual activity in the days surrounding her encounter with Bryant is an exception to rape shield statutes.

Hurlbert would vigorously rebut those motions, saying that neither the woman’s medical records nor her sexual history are relevant to the charges.

And amid those skirmishes, plea discussions could arise. Experts say one side or the other raises the possibility in almost every case. But, Silverman said, “Even if everybody is willing to cut a deal, it would be very hard to accomplish.”

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Possible Options

The charge against Kobe Bryant:

* Forcible sexual assault, a class three felony: Inflicting sexual penetration or intrusion on the victim using the actual application of physical force. Sentence: Either probation for 20 years to life or prison for four years to life, plus a fine of $3,000 to $750,000. Requires sex offender registration and treatment.

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Reduced charges that sexual assault defendants in Colorado often plead to:

* Non-forcible sexual assault, a class four felony: Inflicting sexual penetration or intrusion on the victim but without application of physical force. Sentence: Either probation for 10 years to life or prison for two years to life, plus a fine of $2,000 to $500,000. Requires sex offender registration and treatment.

* Attempted sexual assault, a class five felony: Taking a substantial step toward sexual intrusion without the victim’s consent. Sentence: Either probation for one to four years or prison for one to four years, plus a fine of $1,000 to $100,000. Requires sex offender registration and treatment.

* Unlawful sexual contact, a class one misdemeanor. Subjecting a victim to nonconsensual sexual contact, touching a victim’s intimate parts or the victim touching the actor’s intimate parts for the purpose of sexual arousal. Sentence: Either probation for up to five years or six months to two years in county jail, plus a fine of $500 to $5,000. Requires sex offender registration and treatment.

* Third-degree assault, a class one misdemeanor: Knowing or recklessly causing bodily injury. Sentence: Either probation for up to five years or six months to two years in county jail, plus a fine of $500 to $5,000. Requires sex offender registration if the underlying factual basis of the original charges involves a sexual component.

* False imprisonment, a class two misdemeanor: Knowingly confining or detaining another person without the victim’s consent. Sentence: Either five years’ probation or three months to one year in county jail, plus a fine of $250 to $1,000. Requires sex offender registration if the underlying factual basis of the original charges involves a sexual component.

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Source: Colorado District Attorney’s Council.