Evidence Is the Great Unknown

A few minutes after testimony wrapped up in the People vs. Kobe Bryant preliminary hearing, Eagle County Dist. Atty. Mark Hurlbert stepped in front of the cameras to pronounce that the felony sexual assault case against the Laker star was strong and he was confident in the prosecution.

And most observers wondered how that could be, after witnessing defense attorneys repeatedly raise questions about the credibility of the 19-year-old woman who has accused Bryant of rape.

How could that be after the only witness at the hearing, the detective who investigated the case, stumbled time and again in recalling key facts?

The reason, legal analysts said, is that for all the defense’s success at the hearing, considerable mystery remains about important details, and it remains far too early to assess the twists and turns the case is likely to take if the judge orders a trial -- let alone predict a jury’s verdict.

“We don’t know what we don’t know,” said Loyola Law School professor Laurie Levenson, a former prosecutor.

“I keep wondering what it is we don’t know -- because [the evidence] isn’t adding up.... There may be explanations that fill in the gap. But in the public mind there are huge question marks.

“I think everyone assumed [authorities] wouldn’t possibly file against Kobe Bryant unless they have a dead-bang case,” she added. “I’m not sure we can assume that much longer. You can’t take their word for it -- ‘Trust me’ -- without the evidence.”

For example: What did Bryant tell authorities when they interviewed him July 1, the day after he and his accuser had sex in his hotel room in Edwards, Colo.? Were his audiotaped statements taken surreptitiously? Was he in custody, and thus due his Miranda rights? Did police recite them? And why has the defense fought -- successfully, so far -- to keep what he said confidential?

Those questions were enough to trouble Judge Frederick Gannett. Testimony from Eagle County Det. Doug Winters on what Bryant said on the tape was taken in closed session because the judge said it might be suppressed at trial.

More questions stem from testimony that underwear the woman wore to the hospital examination the day after the encounter with Bryant had blood and a semen stain. The semen is not Bryant’s. Two men who authorities believe might be the source of the semen have been asked to provide samples, testimony indicated, but have declined.

And how did the blood get there? The woman was wearing different underwear the night before she was with Bryant, according to testimony. Evidence from that clothing has not been produced.

And still more: Combings of the woman’s pubic hair revealed a trace of a white male’s hair. Bryant is black. The woman has acknowledged having consensual sex with someone on June 27 or 28, but if investigators know who her partner was it has not been made public.

In bringing the proceeding to a close, Gannett cautioned from the bench that the nature of evidence at a preliminary hearing can be “slightly schizophrenic,” because the public is “privy to only part of what the court has been privy to.”

Experts backed him up.

“I’m sure we didn’t see a lot of the evidence ... ,” said Karen Steinhauser, a former prosecutor, now a University of Denver College of Law professor. “It bothers me that people are trying to make assumptions that this is a weak case for the prosecution or a strong case for defense based on hearsay evidence that came in through a detective and on cross-examination -- and all of a sudden people are trying to guess what the outcome of this trial is going to be.”

Roger Cossack, a legal analyst who covered the case for ESPN, said in an off-air interview, “It’s clear the prosecution knew about all those things the defense brought up [at Wednesday’s hearing]. They knew about the semen stain in the ... panties. They knew about her comment that she’d had sex three days before.

“They knew there was an inconsistency about her having sex three days before and yet having a semen stain in her underwear. They knew about all this before they filed this case.

“That even points out more that what we don’t know is dramatic. That’s why you can’t just say, ‘It’s all over.’ ”

Winters indicated during testimony, and at a short news conference after the hearing, that testing to determine the origin of the semen and pubic hair had been requested but not completed.

However, Colorado Bureau of Investigation spokesman Pete Mang said Thursday that all examinations of forensic evidence requested by investigators in the Bryant case had been completed. He did not comment on specifics, and a spokeswoman for the Eagle County DA’s office said she could not comment.

Despite the many challenges the defense raised, the consensus -- because of the way the law works -- is that Bryant will be ordered to stand trial. Gannett’s written ruling is expected by Monday.

The standard of proof is low. Hearsay evidence, usually not allowed in court, is often admissible. And evidence is judged in the light most favorable to the prosecution.

Experts said there was enough evidence to send the case to trial based on Winters’ testimony last Thursday: “Long story short, she stated that he raped her.”

So why did the hearing span more than eight hours over two days?

Because Bryant has good lawyers who know how to -- and, unlike many cases, can afford to -- challenge the prosecution at every turn. In retrospect, it’s no wonder the defense did not waive the hearing, as many experts had predicted.

The defense also knew when to make adjustments. Mackey wisely softened the tone of her cross-examination Wednesday. Her confrontational style on the hearing’s first day had been condemned by legal analysts and lampooned in a “Saturday Night Live” skit. This time she allowed attention to be focused on the case.

“Everyone loves to jump on the bandwagon and criticize defense lawyers when they are zealously defending their clients,” said Lisa Wayne, a leading Denver defense attorney. But, referring to Mackey, Wayne said, “She really stepped up to the plate.”

In general, prosecutors welcome preliminary hearings. They get the chance to introduce powerful evidence implicating a defendant -- as Winters did last Thursday, when he testified that the woman had told him Bryant held her by the neck as he bent her over a chair and penetrated her vaginally from behind.

Mackey rallied the defense by pointing out inconsistencies in the investigation and in Winters’ testimony. The defense also was able to introduce -- through Winters -- potentially powerful evidence that the first person the woman saw after her encounter with Bryant was the hotel’s night auditor, who indicated in a letter to authorities that her co-worker “did not look or sound as if there had been any problems.”

However, the defense did not challenge blood found on the woman’s underwear and blood found on the bottom inside front of the white T-shirt Bryant was wearing when he was first interviewed by authorities.

“They never got near that,” Cossack said. “Somewhere that’s going to have to be addressed.”

As is the critical matter of what Bryant first said to police -- and the conditions under which he made any statements. Even if he had been advised of his rights and the audiotape was made legally, did any medications he took stemming from surgery he underwent on his knee earlier in the day affect his ability to consent to be interviewed?

Bryant’s credibility is at stake, and so too is his accuser’s.

“Her demeanor [on the stand] is going to be everything,” said Marcia Clark, the lead prosecutor in the O.J. Simpson criminal trial, who attended the hearing as a television reporter.

Which is where the case now almost certainly heads -- to what she says vs. what he says at trial.

And, as Jim Fahrenholtz, a veteran Eagle County lawyer, said after the proceedings had drawn -- for now -- to a close, “You never know what can happen at a trial.”