Statement Seen as Smart Move

By admitting that he had sex with a young woman, Los Angeles Laker star Kobe Bryant turned his sexual assault case into a credibility contest rather than a trial that will center on DNA evidence, legal analysts said Friday night.

“From a defense perspective, it is exactly the right strategy,” said Loyola Law School professor Laurie Levenson.

“The tough issue in rape cases is whether there was consent or force,” said Levenson, a former federal prosecutor. “And when you are Kobe Bryant, who people want to root for,” battling the case out on the issue of credibility normally “moves the ball more into your court.”

Veteran Denver defense lawyer Jeralyn Merritt agreed. “This is a tough case to prove. There were no witnesses.”

However, Miami lawyer Roy E. Black, who successfully defended William Kennedy Smith on rape charges in 1991 in one of the nation’s first high-profile televised trials, said it was much too early to draw conclusions, because so few facts are known.

The complaint lodged by prosecutors Friday contained little detail. Black said a key factor will be what, if any, physical evidence exists that force was used.

“Is there any evidence of bruising, damage to her clothing, panties, bra; anything like that would corroborate what she says or contradict it. That is the first thing I would want to focus on,” Black said.

The Eagle County, Colo., district attorney said Friday only that he has enough “physical and testimonial” evidence to prove that Bryant committed a felony of sexual assault with force, which in Colorado carries a sentence ranging from probation to life in prison. The term of probation could last from 20 years to life and include a sex-offender treatment program. Several Colorado lawyers said defendants often get at least four years.

Several lawyers said the fact that Bryant is a famous athlete with a good reputation gives him an advantage but is unlikely to be enough to carry the day for him, particularly if the case is tried in the small Colorado town where the alleged victim lives.

“Everyone up there knows who she is, even though she has not been identified in the press,” Merritt said. “She has a lot of people rallying to her support.

“It’s hard to imagine that the trial will not be moved because of all the publicity and the feeling in the community,” said Merritt, secretary of the National Assn. of Criminal Defense Lawyers.

Moving the trial definitely would be to Bryant’s advantage, Merritt said, because “he has an excellent reputation, no prior record and has excellent attorneys.”

In Black’s view, it would “be unfair to try him in a small community like that. You should put it in a larger place with a larger jury pool. You can’t have people on the jury who know her or her family. This is not a technicality. Having disinterested jurors, jurors who have no investment, [is] are critically important to a fair verdict.”

But winning a change of venue is normally quite difficult in Colorado, said Bryan Shaha, a veteran defense lawyer in Greeley, Colo. Often, judges are willing to move trials only after jury selection has begun and it becomes clear that many potential jurors have a strong predisposition toward guilt or innocence, Shaha said. Generally, he said, judges pay little heed to polls sometimes submitted by attorneys showing that people in an area have strong views on a case.

One of Bryant’s lawyers, Pamela Mackey, said Friday that no decision had been made on whether the defense team would seek to have the trial moved.

Several lawyers said they thought it was unlikely that the case could be resolved with a plea bargain.

“Finding a middle ground is very difficult” in a sexual assault case, particularly one involving a celebrity, said Edward J. Nugent, a veteran defense lawyer in Grand Junction, Colo.

“You have a prominent public figure. Any type of admission has other consequences besides the criminal consequences,” such as the possible loss of endorsements. Consequently, Nugent said, “the likelihood of trial is pretty great.”

On the other hand, Bryant faces considerable risk is going to trial. First, Colorado has a tough shield law in rape cases, which strictly limits the questions that an accuser may be asked about her sexual history. That is a definite advantage to the prosecutor.

In addition, Nugent said, under Colorado law a person convicted of this crime must register as a sexual offender. Nugent said there is another risk under a statute passed in 1999: Once convicted and sent to prison for sexual assault, an inmate must convince corrections officials that he is no longer a danger to society to win release. Nugent said the standards on how such a determination is made are still evolving because the law is so new, but that such inmates clearly face the prospect of serving more than four years.

At this stage, lawyers said, one of the strongest points for the defense may be the fact that the 19-year-old woman went to Bryant’s room after 11 p.m.

“Going to someone’s room near midnight is probably not for work,” Nugent said. “That looks like a social decision.”

All of the woman’s “actions will be put under a microscope,” Levenson said. “The defense will say that her going to his room shows that the encounter was consensual. But the real question is, why did she go to his room? Was she misled? Even if she went there with thoughts of ‘getting to know him,’ that does not give him license to assault her. Teenage girls have been known to do unwise things, but that is not an invitation to be sexually assaulted.”

Black noted that heavyweight boxer Mike Tyson was convicted of rape in 1992 even though Desiree Washington went to his hotel room. On the other hand, Black said, Bryant’s reputation is starkly different than that of Tyson, who was known for thuggish behavior.

Another problem Bryant may face involves statements he has made about the case. In an interview with The Times earlier this month, Bryant said, “When everything comes clean, it will be all fine, you’ll see. But you guys know me, I shouldn’t have to say anything. You know I would never do something like that.”

While Bryant did not explicitly deny that he had sex with the woman, his admission of adultery Friday could be construed as a contradiction, Black said.

“The biggest problem people have in situations like this is making inconsistent statements. It may well be that what he meant [in the interview] was the sex was consensual. But on its face, it looks inconsistent. It was opaque, but suspicious minds will latch on to that.”

Additionally, Black said, whatever Bryant said to investigating authorities when he was arrested also will come into play.

One thing Bryant clearly has going for him are his lawyers.

Mackey, 46, who is based in Denver, successfully represented author Hunter S. Thompson when he faced drug charges in 1990, and Patrick Roy, then the goalie for the Colorado Avalanche, who was accused of domestic violence involving his wife in 2001. Mackey also knows the territory, having served as a public defender in Eagle County in the 1990s.

Bryant’s other attorney, 62-year-old Hal Haddon, also based in Denver, has represented John and Patricia Ramsey in the high-profile case involving the still-unsolved 1996 killing of their 6-year-old daughter, Jon Benet.

In contrast, Mark Hurlbert, 34, is a new district attorney, facing the glare of national media coverage for the first time.

Levenson and others said Bryant appears to have had little choice about making his statement of contrition Friday. Hurlbert did not say what the DNA tests in the case revealed, but lawyers thought it overwhelmingly likely, given Bryant’s admission of a sexual liaison, that there was a positive DNA test.

As Levenson put it, “If it’s your sperm, there is not much more to be said.”