Bryant Defense Manages to Get Its Side Aired

Conventional thinking before court convened Thursday in the case of the People vs. Kobe Bryant was that the defense team would pass on a preliminary hearing.

Conventional thinking was wrong.

After a day of explosive and graphic testimony, the defense had dramatically managed to present its own version of events, laying the groundwork for a significant challenge to the prosecution assertion that Bryant raped a 19-year-old woman on June 30 at a resort in Edwards, Colo.

The prosecution indisputably scored points, experts said, in large measure because of the nature of the detail leveled against Bryant. But they also noted that the defense counterattack was unusually powerful, given that this was a preliminary hearing, where the odds are normally stacked on the side of the prosecution.

Moreover, the prosecutor, Deputy Dist. Atty. Gregg Crittenden, was chided by the judge for not knowing how to properly ask a question of his witness, a basic taught in law school. The witness, a detective who initially led the investigation, couldn’t remember key facts. And aggressive questioning by defense attorney Pamela Mackey sowed the seeds, legal experts said, for the defense to ultimately create the reasonable doubt it will seek before a jury.

Denver attorney Nathan D. Chambers, who represented Oklahoma City bomber Timothy J. McVeigh after his conviction and who attended Thursday’s hearing, said of the prosecution, “They’ve got some problems.”

Craig Silverman, a former Denver chief deputy district attorney also on hand for the hearing, noted that the prosecution was unlikely to be “holding anything back.”

“Kobe Bryant came off as an oafish, boorish adulterer,” Silverman said. “But it doesn’t appear there’s sufficient evidence for 12 people to call him a rapist.”

With testimony not concluded, Eagle County Judge Frederick Gannett continued the hearing until Wednesday, putting off until then the likely decision that Bryant will eventually stand trial. Bryant remains free on $25,000 bail.

In open court, testimony abruptly ended with Mackey’s final question hanging in the air. It was a rhetorical bomb designed to shape the direction of the case the defense’s way in the weeks and months to come.

Cross-examining Eagle County Sheriff’s Det. Doug Winters, inquiring into the prosecution assertion that a medical examination showed evidence consistent with “penetrating ... trauma,” Mackey asked whether the evidence wasn’t also consistent “with a person who’d had sex with three different men in three days.” The prosecution objected. Gannett called an immediate halt to the questions and summoned the attorneys to another room.

But, as lawyers say, the question amounted to a bell that can’t be unrung. It was an inquiry designed to cast doubt from coast to coast, in newspapers and on television, on the 19-year-old’s credibility.

Traditionally, names of complaining witnesses in sexual assault cases are not used in open court. But Mackey blurted out the accuser’s name six times Thursday. She apologized each time. Experts were divided about whether Mackey did so on purpose. They agreed, however, that doing so also advanced another defense objective --sharply limiting the possibility that a trial will be televised, for fear the woman’s name would be used, even accidentally, on camera.

Norman Early, a former Denver district attorney, said outside the courthouse afterward that he was appalled.

“Once may be a mistake. Twice may be a mistake. Six times is no mistake,” Early said. “And to follow those six times up with the kind of question she asked about this woman having sex with three different people on three different days, knowing she’s not going to be able to prove that at trial, that’s nothing but ... contemptible, despicable and sleazy.”

Others, however, said Mackey was shrewd and sophisticated and must have had sound basis for asking the question.

Silverman said, “Note how artfully the question was put. She didn’t say it, was this consistent with [the accuser].... She simply asked if the injury was consistent with ‘a person’ having sex with three men over three days.”

Mark J. Werksman, a former federal prosecutor and current criminal defense attorney in Los Angeles, who has been involved in numerous high-profile cases, said in a telephone interview, “The defense is simply trying to inject their [case] onto the record in an otherwise very restrictive environment.”

Because a preliminary hearing is so restrictive -- the law says that all inferences favor the prosecution and that hearsay evidence, generally inadmissible, is loosely allowed -- conventional wisdom had it that Bryant and his defense team would waive the hearing and go straight to trial court.

From a prosecution standpoint, a preliminary hearing generally offers a large upside. As Marcia Clark, lead prosecutor in the O.J. Simpson criminal trial who is here as a TV reporter, said, it is “to show people I have a powerful case.”

Sexual assault cases typically feature graphic and explicit testimony. Winters’ account of the accuser’s description of what happened was no exception. He testified that she said Bryant had bent her over a chair in his hotel room, pulled down her underwear and assaulted her vaginally while keeping a firm grip with his hands on her neck and shoulders.

“Long story short, she stated that he raped her,” Winters said.

It remains unclear whether testimony from a bellhop at the hotel, whom the woman saw after leaving Bryant’s room, could corroborate her account.

Winters also said that investigators later found traces of blood on the inside of the white T-shirt that Bryant wore that night. Former prosecutor Clark called that “very compelling.”

But, Silverman said, “These facts are going to come out eventually,” and a defense team’s thinking has to be, “Pick your poison,” now or later.

Silverman also said that doing it now, rather than waiting until trial, may have undermined forever Bryant’s carefully cultivated image. But the concern from a defense perspective is not Bryant’s endorsement earning power but keeping him out of jail. And launching an assault now on the prosecution case allows the defense theory, that Bryant and the woman had consensual sex, to percolate from now until trial in the court of public opinion, the same source as the jury pool.

Under cross-examination, for example, Winters acknowledged that the victim’s body had no marks or scrapes on her neck or shoulders. A photo showed only a small bruise on the left side of her jaw -- which, the detective said, he didn’t see while questioning her. It was noticed later by a nurse, he said.

He testified that she said Bryant asked her to kiss his penis after intercourse. But the detective also testified that she didn’t tell him about that -- that she told the nurse, and the nurse then told him, a possible telling inconsistency.

“That’s an issue the prosecution doesn’t need in a case like this,” Denver attorney Chambers said.

The detective also testified that the 19-year-old went willingly to Bryant’s room and that she said they engaged in “mutual flirting.”

Chambers said, “That’s going to be troubling to some jurors.”

And then, ultimately, there remains the issue of the woman’s credibility, matched against Bryant’s.

Silverman observed after leaving the courtroom, “I don’t think the defense was disappointed with the way the ... hearing ended, with that bell ringing in everybody’s head.”