OT - Kobe case

SackAttack · 10-10-2003, 01:18 AM

I'm gonna preface this by saying that, while I have not reached an informed opinion on whether or not Kobe is guilty of the crime for which he stands accused, I AM a firm believer in the premise of 'innocent until proven guilty.' Yes, even if it were a damned dirty Giant like Barry Bonds standing trial.

But my question is this - has anybody else been following the case, and been coming to the conclusion that the judge is behaving in a manner prejudicial to Mr. Bryant's defense?

I understand the idea behind protecting the identify of those claiming to have been raped, and the reasons for that. However, why is Kobe, as the defendant, subject to having his name be a matter of public record, while the court rebukes his attorney for mentioning the alleged victim by name?

Why is his defense team denied access to the victim's medical records for the purpose of determining her potential state of mind?

Why is it that the accuser is allowed to testify at the hearing, not in person, but rather through the mouth of a police officer? What happened to the Constitutionally guaranteed right to face one's accuser?

Why is the State allowed to present inflammatory evidence at a pre-trial hearing - evidence that could be prejudicial to a potential jury pool - but when, on cross examination, the defense asks if the injuries suffered by the accuser might not perhaps be consistent with promiscuous activity (to wit, having sex with three men in three days), the judge stops the hearing and calls counsel into his chambers?

The burden of proof is supposed to be upon the state to prove the guilt of the accused, but the judge presiding seems to be attempting to cut off every potential avenue of defense that Kobe's counsel might be inclined to pursue. How is that remotely fair in the search for justice? Kobe, because he stands accused, can have his motives searched and his reputation dragged through the mud, but the accuser may not be investigated for signs of mental illness or behavior that might otherwise put her story in a different light?

Again, I don't have all the facts. I don't know if he's guilty or not, and I have not formed an opinion on such. From everything I've seen and read, however, it DOES seem to me as though the court is behaving in a prejudicial manner here.

Am I the only one who's reaching this conclusion?

Draft Dodger · 10-10-2003, 01:26 AM

all I can say is two things:

1) I'm not a lawyer.
2) I suspect the fact that this is just a preliminary hearing (essentially, to see if there's enough evidence to actually warrant a trial) is what makes is look one-sided. The defense isn't really here to defend the case, they are just here to challenge that there is any reason to go to trial. or, so I assume.

SackAttack · 10-10-2003, 01:34 AM

Quote:

Originally posted by Draft Dodger
2) I suspect the fact that this is just a preliminary hearing (essentially, to see if there's enough evidence to actually warrant a trial) is what makes is look one-sided. The defense isn't really here to defend the case, they are just here to challenge that there is any reason to go to trial. or, so I assume.

I'd say if there's a sound medical explanation for the injuries that could plant the seed of reasonable doubt where rape is concerned, then that's a reason to challenge it.

Which is why I don't understand why the judge called counsel into his chambers following that question on cross.

mckerney · 10-10-2003, 01:35 AM

As far as what the defense wasn't allowed to do, this wasn't the actual trial and the defense will be allowed to do more once it does start. And I've heard quite a bit about the medical records issue and determining state of mind, though I'm really not sure that this information would help the defense, and that it could end up hurting it more.

SackAttack · 10-10-2003, 01:35 AM

dola - not saying, mind you, that the judge should dismiss the case on the basis of the answer to that question. Simply that, if the defense is there to present reasons WHY the case should be dismissed, the judge really shouldn't be shutting down their lines of questioning like that.

just two bits from the peanut gallery, anyhow.

mckerney · 10-10-2003, 01:42 AM

Also, although I obviously do not know a whole lot about the case right now, what I've heard so far has lead me to be inclined to believe that he did do it. This really doesn't seem like a case such as when Ray Lewis was on trial as a result of DA's wanting to go ahead and get him because he was a well known star, and I'm not sure it would have come this far unless they had some good evidence. Because of this the thought came to me earlier that we could see young stars in two different sports have their careers cut short as they may be going to jail for quite some time.

Also, you can spare me the 'innocent until proven guilty' stuff, I'm not convicting him in a court of law, I'm merely stating an opinion on what I've seen so far, and an opinion that could easily change as more on the case comes out.

SackAttack · 10-10-2003, 01:53 AM

mckerney - yes, but even if 'innocent until proven guilty' means little to you at this point, it's still the basis for our system of justice, and needs to be treated as such by the courts. Prejudicial behavior is still damaging to the cause of justice in any form. It doesn't matter if it's a multimillionaire athlete on trial, or an indigent reliant upon pro bono assistance.

Your opinion is your opinion, and you're entitled to such.

The courts, however, are still required to consider the defendant innocent until and unless proven guilty. Acting in such a manner that would deny the defendant his ability to assert his innocence amounts to the opposite, IMO.

mckerney · 10-10-2003, 02:01 AM

Agreed, and I think you will see that in the actual trial. Though just as the accused has such rights, I think the accuser should as well. I don't think the medical records should be opened, though I'd see no problem with those who knew her testifying to what mental state she was in (though again, I'm not sure this is going to help the defense). Also, especially in a case like this where there is a high profile defendant I think the laws that shield the accusers name are important, not only for the fact that she should have the right to not have her name dragged through the mud (if this wasn't the case you'd most likely have women not coming forward to bring accusations in situations like this if they were victimized as they would not want to go through the whole ordeal), and for safety (as there has already been someone offer to kill her).

astralhaze · 10-10-2003, 02:13 AM

It's a preliminary hearing, period. Almost everything you mention will be brought up at trial. The purpose of the preliminary hearing is to determine if there is enough evidence to go forward with a trial. It is not to determine guilt or innocence.

The defense knows this and the only reason that I can surmise for them demanding that the victim testify, using her name four times in the hearing, and asking for her Rape Crisis Center notes was to intimidate the defendant. The judge, rightly, has thwarted their attempts. If anything, I would be more upset with the low-blow defense tacticts than any of the judge's rulings thus far.

TroyF · 10-10-2003, 02:49 AM

I understand the idea behind protecting the identify of those claiming to have been raped, and the reasons for that. However, why is Kobe, as the defendant, subject to having his name be a matter of public record, while the court rebukes his attorney for mentioning the alleged victim by name?

The biggest reason is so women who really have been raped come forward with the accusation. Not saying it's right, but it is that way in most every state. Kobe's attorney is intentionally trying to circumvent that rule. The judge will probably have very little patience if she continues with the tactic when the hearing resumes next week.

Why is his defense team denied access to the victim's medical records for the purpose of determining her potential state of mind?

Simple. This is state law in Colorado. The judge is simply ruling on a law that already has been put into place. It's a no brainer. Kobe's lawyers knew they'd lose this one. They did it to set up a potential appeal if they lose the case.

Why is it that the accuser is allowed to testify at the hearing, not in person, but rather through the mouth of a police officer? What happened to the Constitutionally guaranteed right to face one's accuser?

You have the constitutional right to face your accuser at trial. The preliminary hearing is simply about making sure there is enough evidence to go to trial. Again, the defense knew they'd lose this ruling. The goal in this case wasn't to set up an appeal, but to play the long shot that if they won, they'd get to "test" the witness before the actual trial took place. They never had a chance in any courtroom in America.

Why is the State allowed to present inflammatory evidence at a pre-trial hearing - evidence that could be prejudicial to a potential jury pool - but when, on cross examination, the defense asks if the injuries suffered by the accuser might not perhaps be consistent with promiscuous activity (to wit, having sex with three men in three days), the judge stops the hearing and calls counsel into his chambers?

This is a prelimanary hearing. Her character is fairly irrelevant at this stage. It doesn't matter if she's had sex with 30 guys in 3 days. She has bruising on her face. Kobe's DNA was found in her. Kobe lied about the sex to the police originally. The prelimanary hearing is not designed to give the defense a chance to test out their theories. It's designed to see if a reasonable case can be made. They can determine that case without going through the victim's history.

The burden of proof is supposed to be upon the state to prove the guilt of the accused, but the judge presiding seems to be attempting to cut off every potential avenue of defense that Kobe's counsel might be inclined to pursue. How is that remotely fair in the search for justice? Kobe, because he stands accused, can have his motives searched and his reputation dragged through the mud, but the accuser may not be investigated for signs of mental illness or behavior that might otherwise put her story in a different light?

Again, you are looking at facts that would exist in the trial, not the preliminary hearing. Kobe's team will attack the accuser's past mental and sexual history. They'll hammer her credibility in the courtroom. Defenses that do that draw a fine line though. If the accuser is believable and emotional on the stand, combined with a story that stays consistent. . . attacking her too hard may push the jury against the defendant. They probably will never get the past medical records. Again, that is state law. They aren't going to be able to change that.

Again, I don't have all the facts. I don't know if he's guilty or not, and I have not formed an opinion on such. From everything I've seen and read, however, it DOES seem to me as though the court is behaving in a prejudicial manner here.

I don't think the court is behaving in an inappropriate way at this time. Everything has been expected up to this point. It isn't unusual for a defense to carpet bomb the court with a ton of motions they know they have little shot at. It sets them up for potential appeals. If they get one that goes their way, they know the prosecution won't have the right to appeal back on them.

As for opinions on the case. . . nobody really should have one yet. The prosecution has told its side. It's a slam dunk this will be held over for trial. We'll have to wait for that date for the defense to tell their side.

The only thing I stand by is what I've said all along: There is more to this case than a simple he said/she said arguement. The prosecution, in all probability, has more than what they are giving away at this hearing. Just in this hearing, we now know there is facial bruising. I'd be willing to bet there will be more of that type of evidence that we haven't heard about yet.

Don't read into that like I think Kobe is guilty. I have no idea if he is or isn't. I just felt there would be more physical evidence than a lot of people were saying. That's all.

TroyF

SackAttack · 10-10-2003, 03:02 AM

Quote:

Originally posted by mckerney
Agreed, and I think you will see that in the actual trial. Though just as the accused has such rights, I think the accuser should as well. I don't think the medical records should be opened, though I'd see no problem with those who knew her testifying to what mental state she was in (though again, I'm not sure this is going to help the defense).

That'd amount to hearsay, I think, although I could certainly be wrong. Plus, I'd tend to think that their first thought would be protecting the accused. Not sure you'd get their true feelings on the matter out of them if, in fact, she was behaving irrationally. But that's dealing with hypotheticals anyway, since I'm not sure the judge would allow even that much, based on what I've seen thus far.

Quote:

Also, especially in a case like this where there is a high profile defendant I think the laws that shield the accusers name are important, not only for the fact that she should have the right to not have her name dragged through the mud (if this wasn't the case you'd most likely have women not coming forward to bring accusations in situations like this if they were victimized as they would not want to go through the whole ordeal), and for safety (as there has already been someone offer to kill her).

In fairness, there have been death threats against the presiding judge, the attorneys in question, the accuser, and against Kobe.
She's not the only one who has been threatened. People on both sides of the aisle are getting nasty letters, phone calls, what have you.

But even so, why is it more 'right' for the accuser of a high-profile defendant to maintain her anonymity while his name gets splashed across the front pages? It seems to me that such shield laws represent a powerful weapon if there's malice involved on the part of the accuser.

A rape accusation can destroy a person's reputation, and quite possibly ruin their lives - PARTICULARLY where the high-profile defendants are concerned. I understand the need to protect the privacy of the victims, as well as to encourage them to step forward in cases where rape has occurred, but I believe it also puts a disproportionate amount of power in the hands of the accusers.

For the record, I don't have a problem with confidentiality for the accuser. I just think the accused ought to have the same rights and protections. I realize there's an added degree of difficulty where the famous are concerned, since loose lips will flap, but measures need to be taken, I think.

I dunno. Maybe part of this is rooted in my frustration with a sensational news media. I just think that where we're headed (or may already be) is a society where privacy is a right if you're having an abortion, but not if you're accused of a crime. Where the public right to know outweighs the right of the defendant to a fair trial by an unprejudiced jury of his or her peers.

And maybe I'm just tired, cranky, and in need of sleep.

SackAttack · 10-10-2003, 03:18 AM

Quote:

Originally posted by TroyF
The biggest reason is so women who really have been raped come forward with the accusation. Not saying it's right, but it is that way in most every state. Kobe's attorney is intentionally trying to circumvent that rule. The judge will probably have very little patience if she continues with the tactic when the hearing resumes next week.

That explains the right of the accuser to remain anonymous, sure. And I agree with that. But that still doesn't answer the fundamental part of that question, which is: why is the defendant subject to unwanted press attention, while the accuser isn't? That amounts to an implied assumption of guilt, which I have issues with.

Simple. This is state law in Colorado. The judge is simply ruling on a law that already has been put into place. It's a no brainer. Kobe's lawyers knew they'd lose this one. They did it to set up a potential appeal if they lose the case.

Okay. Not sure I agree with the law on that one, then, but if it's state law, then I'll accept that the judge ruled properly.

You have the constitutional right to face your accuser at trial. The preliminary hearing is simply about making sure there is enough evidence to go to trial. Again, the defense knew they'd lose this ruling. The goal in this case wasn't to set up an appeal, but to play the long shot that if they won, they'd get to "test" the witness before the actual trial took place. They never had a chance in any courtroom in America.

Okay. Take it a step further, then. If she's not required to testify, why is her testimony permitted to be delivered by a third party? Shouldn't that amount to hearsay?

This is a prelimanary hearing. Her character is fairly irrelevant at this stage. It doesn't matter if she's had sex with 30 guys in 3 days. She has bruising on her face. Kobe's DNA was found in her. Kobe lied about the sex to the police originally. The preliminary hearing is not designed to give the defense a chance to test out their theories. It's designed to see if a reasonable case can be made. They can determine that case without going through the victim's history.

I hadn't heard that Kobe lied about the sex. As for the rest of it, if she has a history of promiscuity, and did in fact engage in such activities during the time surrounding the alleged rape, then that would certainly seem to be relevant to me. The DNA alone isn't proof of rape. The bruising and injuries could be, certainly, but it's entirely possible that they're indicative of something else. Perhaps a pre-trial hearing isn't the time for that, but neither does it seem like the sort of thing that should cause the judge to order counsel to the judge's chambers, from where I sit.

Again, you are looking at facts that would exist in the trial, not the preliminary hearing. Kobe's team will attack the accuser's past mental and sexual history. They'll hammer her credibility in the courtroom. Defenses that do that draw a fine line though. If the accuser is believable and emotional on the stand, combined with a story that stays consistent. . . attacking her too hard may push the jury against the defendant. They probably will never get the past medical records. Again, that is state law. They aren't going to be able to change that.

I was once told that a story that remains unchanged is generally a telltale sign of a lie in progress, but then, I tend to think that you're not using the word 'consistent' to mean 'unchanged.'

I don't think the court is behaving in an inappropriate way at this time. Everything has been expected up to this point. It isn't unusual for a defense to carpet bomb the court with a ton of motions they know they have little shot at. It sets them up for potential appeals. If they get one that goes their way, they know the prosecution won't have the right to appeal back on them.

Okay.

As for opinions on the case. . . nobody really should have one yet. The prosecution has told its side. It's a slam dunk this will be held over for trial. We'll have to wait for that date for the defense to tell their side.

Agreed.

The only thing I stand by is what I've said all along: There is more to this case than a simple he said/she said arguement. The prosecution, in all probability, has more than what they are giving away at this hearing. Just in this hearing, we now know there is facial bruising. I'd be willing to bet there will be more of that type of evidence that we haven't heard about yet.[/quote]

More than that came out. Kobe is alleged to have choked her during the act, with one hand at times, with both hands at times, and to have committed the act from behind while bending her over a chair. She also apparently is claiming that he stopped when she pried his fingers from her.

If I'm not mistaken, wasn't he up there for post-op knee rehab, and hadn't he recently had shoulder surgery as well? That particular chain of events is more than a little puzzling to me.

Don't read into that like I think Kobe is guilty. I have no idea if he is or isn't. I just felt there would be more physical evidence than a lot of people were saying. That's all.

Oh, I know. I do take issue with judgment being drawn before all of the evidence is presented, but frankly, I'm more concerned that the wheels of justice turn in a nonprejudicial manner than that the average citizen who won't be called to serve be unbiased.

TroyF · 10-10-2003, 04:42 AM

That explains the right of the accuser to remain anonymous, sure. And I agree with that. But that still doesn't answer the fundamental part of that question, which is: why is the defendant subject to unwanted press attention, while the accuser isn't? That amounts to an implied assumption of guilt, which I have issues with.

Because people are afraid that if women get thrown through the gauntlet, they'll be less likely to report a rape. The girl has already had death threats on her as it is. Again, I'm not saying it is fair, but it's consistent in every state.

Okay. Take it a step further, then. If she's not required to testify, why is her testimony permitted to be delivered by a third party? Shouldn't that amount to hearsay?

Not when the heresay comes from direct quotes delivered to a police officer. That isn't heresay, that's an interview. All they need are her quotes from the initial interview and the physical evidence. Very similar when prosecuting for domestic violence if the women refuses to testify. Whatever she told the police that night, combined with the physical scars will push the case through with or without the testimony of the victim.

I hadn't heard that Kobe lied about the sex. As for the rest of it, if she has a history of promiscuity, and did in fact engage in such activities during the time surrounding the alleged rape, then that would certainly seem to be relevant to me. The DNA alone isn't proof of rape. The bruising and injuries could be, certainly, but it's entirely possible that they're indicative of something else. Perhaps a pre-trial hearing isn't the time for that, but neither does it seem like the sort of thing that should cause the judge to order counsel to the judge's chambers, from where I sit.

You're right on most accounts. . . in the real trial. Again, this is only to determine if there is enough evidence. In this case, his DNA along with her story shows enough evidence. The amount of proof required isn't that strenuous. The only things that get thrown out at these are illegal searches and the like. The defense doesn't get to test out their defense here. It doesn't work like that.

I was once told that a story that remains unchanged is generally a telltale sign of a lie in progress, but then, I tend to think that you're not using the word 'consistent' to mean 'unchanged.'

Correct. I'm talking about specific details. If, for example, she says on the stand that they had consensual oral sex before the rape (BIG example), the prosecutions case would probably be damaged beyond repair.

More than that came out. Kobe is alleged to have choked her during the act, with one hand at times, with both hands at times, and to have committed the act from behind while bending her over a chair. She also apparently is claiming that he stopped when she pried his fingers from her.

If I'm not mistaken, wasn't he up there for post-op knee rehab, and hadn't he recently had shoulder surgery as well? That particular chain of events is more than a little puzzling to me.

Not to me. This guy's a professional athlete. He's 6'6" 200+ pounds of mostly muscle. She's probably a minimum of 75 pounds under that weight. Supposedly, they took a tour of the hotel. If this is true, the knee probably wasn't that sore. If it was, what is he doing walking around a large hotel for? Why didn't he get wheeled up by one of his bodygaurds?

Again, I'm not saying I buy the story, but I don't see how it's way outside the realm of possibility either.

Oh, I know. I do take issue with judgment being drawn before all of the evidence is presented, but frankly, I'm more concerned that the wheels of justice turn in a nonprejudicial manner than that the average citizen who won't be called to serve be unbiased.

Of all the people in America, this is one guy who doesn't have to worry about getting a fair trial. He's going to have all the money in the world for his defense. He's got a spotless record previous to this. He's in one of the easiest trials around to prove reasonable doubt. (a case where even his DNA and other physical evidence won't be enough to convict by themselves)

Don't worry about Kobe getting a fair trial. Walk down to the courthouse and look for some guy accused of rape with a public defender. . . there is someone you need to pray for.

TroyF

Jon · 10-10-2003, 07:24 AM

TroyF:
Not all public defenders are bad. It's just a stereotype that they aren't that great. Shows like Law adn Order adn things like that just foster the stereotype. Here in New York, The Legal Aid Society represents indigent clients adn they do a good job. They regularly stop the D.A. before they even get an indictment. It's just not publicized in the press. And, it's my understanding that the pubic defenders in Colorado aren't that bad either. PD's get a bad rap because the only publicity they get is bad pubilcity.

oykib · 10-10-2003, 11:18 AM

Quote:

Originally posted by Jon
TroyF:
Not all public defenders are bad. It's just a stereotype that they aren't that great. Shows like Law adn Order adn things like that just foster the stereotype. Here in New York, The Legal Aid Society represents indigent clients adn they do a good job. They regularly stop the D.A. before they even get an indictment. It's just not publicized in the press. And, it's my understanding that the pubic defenders in Colorado aren't that bad either. PD's get a bad rap because the only publicity they get is bad pubilcity.

That's true to an extent. I would guess that mny or most PDs are hard-working and do their best. But they are overworked and under-paid from what I understand.

Compared to the defense that can be put forth by people with means, their efforts probably fall a fair amount short.

John Galt · 10-10-2003, 11:44 AM

There are too many points in this thread for me to address, but one stuck out - the argument that sexual history or the victim is relevant.

Thankfully, states have abandoned that view through legislation, but every now and then a court lets it in despite clear statutes the other way. That a woman has consented to sex repeatedly in the past has NO bearing on whether she did not consent at the time in question. In fact, it can very well be argued that a woman who does consent with great frequency is a more credible witness because she never "cried rape" before. The notion that a woman's past history is relevant is based on puritanical notions of female sexuality and amounts to blaming the victim for the crime committed against her.

An analogy to theft proves the point.

Theft is giving money without consent.
Rape is giving sex without consent.

Would proving that a person is charitable and gives lots of money away help establish that theft wasn't committed? Of course not. So should be the same for rape.

Subby · 10-10-2003, 11:52 AM

Great post, John.

TroyF · 10-10-2003, 01:11 PM

Quote:

Originally posted by Jon
TroyF:
Not all public defenders are bad. It's just a stereotype that they aren't that great. Shows like Law adn Order adn things like that just foster the stereotype. Here in New York, The Legal Aid Society represents indigent clients adn they do a good job. They regularly stop the D.A. before they even get an indictment. It's just not publicized in the press. And, it's my understanding that the pubic defenders in Colorado aren't that bad either. PD's get a bad rap because the only publicity they get is bad pubilcity.

I understand Jon. I know not all of them are bad and that many of them do a great job.

They don't have the funding for a defense that someone like Kobe would have though. If the prosecution uses a strangulation expert and gives him 100K to testify, Kobe can find two for 350K to testify for him.

If you were up on murder charges, would you want the public defender or would you rather have an unlimited amount of funding to pick your own lawyer? Who is likely going to get the best defense?

TroyF

SackAttack · 10-10-2003, 01:45 PM

John,

Let me clarify. I'm not suggesting that the woman's sexual history somehow makes her less credible, or that it should be held against her.

I'm simply saying that the question posed was valid - could her injuries be consistent with the behavior suggested? If the answer is yes, then those injuries weren't necessarily inflicted by Kobe, and that does tend to damage the physical evidence presented by the prosecution. If the answer to that is no, then the bruising added with the presence of Kobe's DNA becomes more compelling.

That said...the fact that the woman's blood was found on Kobe's shirt does tend to set some alarms off for me. That's going to be awfully tough to explain.

Maple Leafs · 10-10-2003, 01:49 PM

Quote:

Originally posted by John Galt
There are too many points in this thread for me to address, but one stuck out - the argument that sexual history or the victim is relevant.

Thank you. Absolutely 100% bang-on.

Jon · 10-10-2003, 01:53 PM

To tell you the truth, I would want a combination of the two: the experience and skill of a public defender and the funding of a private firm. Truth be told, the best criminal defense attorneys in the country usually begin as public defenders and that's where they hone their experience. Unfortunately, there are parts of the country (and it might be a substantial) where it's an appointed attorney who is only doing it for the few extra bucks.

As for the sexual history relevancy argument, most places have deemed a victim's sexual history irrelevant, except where it relates to the accused. In this case, it's not relevant at all....her relationships with pas boyfriends, people she met in the bar (even that night) have no bearing on the question as to whether or not Bryant raped her. The dynamics of a relationship change depending upon who the parties are.

Dutch · 10-10-2003, 02:05 PM

Quote:

Theft is giving money without consent.
Rape is giving sex without consent.

Would proving that a person is charitable and gives lots of money away help establish that theft wasn't committed? Of course not. So should be the same for rape.

That's a good analogy, and I agree with it 100%. I guess the only question now is, had the lady already charitably given the money away and now wants it back???

TroyF · 10-10-2003, 02:12 PM

Quote:

Originally posted by SackAttack
John,

Let me clarify. I'm not suggesting that the woman's sexual history somehow makes her less credible, or that it should be held against her.

I'm simply saying that the question posed was valid - could her injuries be consistent with the behavior suggested? If the answer is yes, then those injuries weren't necessarily inflicted by Kobe, and that does tend to damage the physical evidence presented by the prosecution. If the answer to that is no, then the bruising added with the presence of Kobe's DNA becomes more compelling.

That said...the fact that the woman's blood was found on Kobe's shirt does tend to set some alarms off for me. That's going to be awfully tough to explain.

You are putting too much into this. There will be plenty of time to attack the girl's character, and I'm sure the defense will go full bore. You are looking at this like a juror would. We aren't at that point yet. The relevant issue NOW is if there is enough evidence. Again, it doesn't have to be a lot of evidence to do it.

Also, as I've said before, when it does get to trial, the defense will walk a fine line if they center their case around her past history. They go too far and attack a likeable (although troubled) 19 year old girl on the stand, they take a big risk at pissing off the jury.

TroyF

Glengoyne · 10-10-2003, 05:39 PM

Quote:

Originally posted by John Galt
There are too many points in this thread for me to address, but one stuck out - the argument that sexual history or the victim is relevant.

Thankfully, states have abandoned that view through legislation, but every now and then a court lets it in despite clear statutes the other way. That a woman has consented to sex repeatedly in the past has NO bearing on whether she did not consent at the time in question. In fact, it can very well be argued that a woman who does consent with great frequency is a more credible witness because she never "cried rape" before. The notion that a woman's past history is relevant is based on puritanical notions of female sexuality and amounts to blaming the victim for the crime committed against her.

An analogy to theft proves the point.

Theft is giving money without consent.
Rape is giving sex without consent.

Would proving that a person is charitable and gives lots of money away help establish that theft wasn't committed? Of course not. So should be the same for rape.

For once I agree with every thing JG has said in a post.

Also from what I have heard the pundits say about Colorado law her history, mental, sexual, or otherwise, will not be admissable at trial. I don't believe the limitation applies only to the preliminary hearing. I believe the logic that applies is that whatever she has done in the past, has no bearing on whether or not she was raped that night.

astralhaze · 10-10-2003, 05:49 PM

Quote:

Originally posted by Glengoyne
Also from what I have heard the pundits say about Colorado law her history, mental, sexual, or otherwise, will not be admissable at trial. I don't believe the limitation applies only to the preliminary hearing. I believe the logic that applies is that whatever she has done in the past, has no bearing on whether or not she was raped that night.

That is correct.

10-10-2003, 01:26 AM	#2
Draft Dodger Coordinator Join Date: Jan 2001 Location: Keene, NH	all I can say is two things: 1) I'm not a lawyer. 2) I suspect the fact that this is just a preliminary hearing (essentially, to see if there's enough evidence to actually warrant a trial) is what makes is look one-sided. The defense isn't really here to defend the case, they are just here to challenge that there is any reason to go to trial. or, so I assume. __________________ Mile High Hockey

10-10-2003, 02:13 AM	#9
astralhaze College Prospect Join Date: Dec 2002	Re: OT - Kobe case It's a preliminary hearing, period. Almost everything you mention will be brought up at trial. The purpose of the preliminary hearing is to determine if there is enough evidence to go forward with a trial. It is not to determine guilt or innocence. The defense knows this and the only reason that I can surmise for them demanding that the victim testify, using her name four times in the hearing, and asking for her Rape Crisis Center notes was to intimidate the defendant. The judge, rightly, has thwarted their attempts. If anything, I would be more upset with the low-blow defense tacticts than any of the judge's rulings thus far. __________________ I can understand Brutus at every meaning, but that parahraphy threw me for a loop. Last edited by astralhaze : 10-10-2003 at 02:14 AM.

10-10-2003, 11:44 AM	#16
John Galt Pro Starter Join Date: Oct 2000 Location: The Internets	There are too many points in this thread for me to address, but one stuck out - the argument that sexual history or the victim is relevant. Thankfully, states have abandoned that view through legislation, but every now and then a court lets it in despite clear statutes the other way. That a woman has consented to sex repeatedly in the past has NO bearing on whether she did not consent at the time in question. In fact, it can very well be argued that a woman who does consent with great frequency is a more credible witness because she never "cried rape" before. The notion that a woman's past history is relevant is based on puritanical notions of female sexuality and amounts to blaming the victim for the crime committed against her. An analogy to theft proves the point. Theft is giving money without consent. Rape is giving sex without consent. Would proving that a person is charitable and gives lots of money away help establish that theft wasn't committed? Of course not. So should be the same for rape. __________________ I do mind, the Dude minds. This will not stand, ya know, this aggression will not stand, man. - The Dude Last edited by John Galt : 10-10-2003 at 11:45 AM.

10-10-2003, 11:52 AM	#17
Subby lolzcat Join Date: Oct 2000 Location: sans pants	Great post, John. __________________ Superman was flying around and saw Wonder Woman getting a tan in the nude on her balcony. Superman said I going to hit that real fast. So he flys down toward Wonder Woman to hit it and their is a loud scream. The Invincible Man scream what just hit me in the ass!!!!! I do shit, I take pictures, I write about it: chrisshue.com

10-10-2003, 01:53 PM	#21
Jon High School Varsity Join Date: Oct 2000	To tell you the truth, I would want a combination of the two: the experience and skill of a public defender and the funding of a private firm. Truth be told, the best criminal defense attorneys in the country usually begin as public defenders and that's where they hone their experience. Unfortunately, there are parts of the country (and it might be a substantial) where it's an appointed attorney who is only doing it for the few extra bucks. As for the sexual history relevancy argument, most places have deemed a victim's sexual history irrelevant, except where it relates to the accused. In this case, it's not relevant at all....her relationships with pas boyfriends, people she met in the bar (even that night) have no bearing on the question as to whether or not Bryant raped her. The dynamics of a relationship change depending upon who the parties are. Last edited by Jon : 10-10-2003 at 01:56 PM.

10-10-2003, 01:35 AM	#4
mckerney Coordinator Join Date: Oct 2000	As far as what the defense wasn't allowed to do, this wasn't the actual trial and the defense will be allowed to do more once it does start. And I've heard quite a bit about the medical records issue and determining state of mind, though I'm really not sure that this information would help the defense, and that it could end up hurting it more.

10-10-2003, 01:35 AM	#5
SackAttack Head Coach Join Date: Oct 2000 Location: Green Bay, WI	dola - not saying, mind you, that the judge should dismiss the case on the basis of the answer to that question. Simply that, if the defense is there to present reasons WHY the case should be dismissed, the judge really shouldn't be shutting down their lines of questioning like that. just two bits from the peanut gallery, anyhow.

10-10-2003, 01:42 AM	#6
mckerney Coordinator Join Date: Oct 2000	Also, although I obviously do not know a whole lot about the case right now, what I've heard so far has lead me to be inclined to believe that he did do it. This really doesn't seem like a case such as when Ray Lewis was on trial as a result of DA's wanting to go ahead and get him because he was a well known star, and I'm not sure it would have come this far unless they had some good evidence. Because of this the thought came to me earlier that we could see young stars in two different sports have their careers cut short as they may be going to jail for quite some time. Also, you can spare me the 'innocent until proven guilty' stuff, I'm not convicting him in a court of law, I'm merely stating an opinion on what I've seen so far, and an opinion that could easily change as more on the case comes out.

10-10-2003, 01:53 AM	#7
SackAttack Head Coach Join Date: Oct 2000 Location: Green Bay, WI	mckerney - yes, but even if 'innocent until proven guilty' means little to you at this point, it's still the basis for our system of justice, and needs to be treated as such by the courts. Prejudicial behavior is still damaging to the cause of justice in any form. It doesn't matter if it's a multimillionaire athlete on trial, or an indigent reliant upon pro bono assistance. Your opinion is your opinion, and you're entitled to such. The courts, however, are still required to consider the defendant innocent until and unless proven guilty. Acting in such a manner that would deny the defendant his ability to assert his innocence amounts to the opposite, IMO.

10-10-2003, 02:01 AM	#8
mckerney Coordinator Join Date: Oct 2000	Agreed, and I think you will see that in the actual trial. Though just as the accused has such rights, I think the accuser should as well. I don't think the medical records should be opened, though I'd see no problem with those who knew her testifying to what mental state she was in (though again, I'm not sure this is going to help the defense). Also, especially in a case like this where there is a high profile defendant I think the laws that shield the accusers name are important, not only for the fact that she should have the right to not have her name dragged through the mud (if this wasn't the case you'd most likely have women not coming forward to bring accusations in situations like this if they were victimized as they would not want to go through the whole ordeal), and for safety (as there has already been someone offer to kill her).

10-10-2003, 02:49 AM	#10
TroyF Coordinator Join Date: Oct 2000	I understand the idea behind protecting the identify of those claiming to have been raped, and the reasons for that. However, why is Kobe, as the defendant, subject to having his name be a matter of public record, while the court rebukes his attorney for mentioning the alleged victim by name? The biggest reason is so women who really have been raped come forward with the accusation. Not saying it's right, but it is that way in most every state. Kobe's attorney is intentionally trying to circumvent that rule. The judge will probably have very little patience if she continues with the tactic when the hearing resumes next week. Why is his defense team denied access to the victim's medical records for the purpose of determining her potential state of mind? Simple. This is state law in Colorado. The judge is simply ruling on a law that already has been put into place. It's a no brainer. Kobe's lawyers knew they'd lose this one. They did it to set up a potential appeal if they lose the case. Why is it that the accuser is allowed to testify at the hearing, not in person, but rather through the mouth of a police officer? What happened to the Constitutionally guaranteed right to face one's accuser? You have the constitutional right to face your accuser at trial. The preliminary hearing is simply about making sure there is enough evidence to go to trial. Again, the defense knew they'd lose this ruling. The goal in this case wasn't to set up an appeal, but to play the long shot that if they won, they'd get to "test" the witness before the actual trial took place. They never had a chance in any courtroom in America. Why is the State allowed to present inflammatory evidence at a pre-trial hearing - evidence that could be prejudicial to a potential jury pool - but when, on cross examination, the defense asks if the injuries suffered by the accuser might not perhaps be consistent with promiscuous activity (to wit, having sex with three men in three days), the judge stops the hearing and calls counsel into his chambers? This is a prelimanary hearing. Her character is fairly irrelevant at this stage. It doesn't matter if she's had sex with 30 guys in 3 days. She has bruising on her face. Kobe's DNA was found in her. Kobe lied about the sex to the police originally. The prelimanary hearing is not designed to give the defense a chance to test out their theories. It's designed to see if a reasonable case can be made. They can determine that case without going through the victim's history. The burden of proof is supposed to be upon the state to prove the guilt of the accused, but the judge presiding seems to be attempting to cut off every potential avenue of defense that Kobe's counsel might be inclined to pursue. How is that remotely fair in the search for justice? Kobe, because he stands accused, can have his motives searched and his reputation dragged through the mud, but the accuser may not be investigated for signs of mental illness or behavior that might otherwise put her story in a different light? Again, you are looking at facts that would exist in the trial, not the preliminary hearing. Kobe's team will attack the accuser's past mental and sexual history. They'll hammer her credibility in the courtroom. Defenses that do that draw a fine line though. If the accuser is believable and emotional on the stand, combined with a story that stays consistent. . . attacking her too hard may push the jury against the defendant. They probably will never get the past medical records. Again, that is state law. They aren't going to be able to change that. Again, I don't have all the facts. I don't know if he's guilty or not, and I have not formed an opinion on such. From everything I've seen and read, however, it DOES seem to me as though the court is behaving in a prejudicial manner here. I don't think the court is behaving in an inappropriate way at this time. Everything has been expected up to this point. It isn't unusual for a defense to carpet bomb the court with a ton of motions they know they have little shot at. It sets them up for potential appeals. If they get one that goes their way, they know the prosecution won't have the right to appeal back on them. As for opinions on the case. . . nobody really should have one yet. The prosecution has told its side. It's a slam dunk this will be held over for trial. We'll have to wait for that date for the defense to tell their side. The only thing I stand by is what I've said all along: There is more to this case than a simple he said/she said arguement. The prosecution, in all probability, has more than what they are giving away at this hearing. Just in this hearing, we now know there is facial bruising. I'd be willing to bet there will be more of that type of evidence that we haven't heard about yet. Don't read into that like I think Kobe is guilty. I have no idea if he is or isn't. I just felt there would be more physical evidence than a lot of people were saying. That's all. TroyF

10-10-2003, 04:42 AM	#13
TroyF Coordinator Join Date: Oct 2000	That explains the right of the accuser to remain anonymous, sure. And I agree with that. But that still doesn't answer the fundamental part of that question, which is: why is the defendant subject to unwanted press attention, while the accuser isn't? That amounts to an implied assumption of guilt, which I have issues with. Because people are afraid that if women get thrown through the gauntlet, they'll be less likely to report a rape. The girl has already had death threats on her as it is. Again, I'm not saying it is fair, but it's consistent in every state. Okay. Take it a step further, then. If she's not required to testify, why is her testimony permitted to be delivered by a third party? Shouldn't that amount to hearsay? Not when the heresay comes from direct quotes delivered to a police officer. That isn't heresay, that's an interview. All they need are her quotes from the initial interview and the physical evidence. Very similar when prosecuting for domestic violence if the women refuses to testify. Whatever she told the police that night, combined with the physical scars will push the case through with or without the testimony of the victim. I hadn't heard that Kobe lied about the sex. As for the rest of it, if she has a history of promiscuity, and did in fact engage in such activities during the time surrounding the alleged rape, then that would certainly seem to be relevant to me. The DNA alone isn't proof of rape. The bruising and injuries could be, certainly, but it's entirely possible that they're indicative of something else. Perhaps a pre-trial hearing isn't the time for that, but neither does it seem like the sort of thing that should cause the judge to order counsel to the judge's chambers, from where I sit. You're right on most accounts. . . in the real trial. Again, this is only to determine if there is enough evidence. In this case, his DNA along with her story shows enough evidence. The amount of proof required isn't that strenuous. The only things that get thrown out at these are illegal searches and the like. The defense doesn't get to test out their defense here. It doesn't work like that. I was once told that a story that remains unchanged is generally a telltale sign of a lie in progress, but then, I tend to think that you're not using the word 'consistent' to mean 'unchanged.' Correct. I'm talking about specific details. If, for example, she says on the stand that they had consensual oral sex before the rape (BIG example), the prosecutions case would probably be damaged beyond repair. More than that came out. Kobe is alleged to have choked her during the act, with one hand at times, with both hands at times, and to have committed the act from behind while bending her over a chair. She also apparently is claiming that he stopped when she pried his fingers from her. If I'm not mistaken, wasn't he up there for post-op knee rehab, and hadn't he recently had shoulder surgery as well? That particular chain of events is more than a little puzzling to me. Not to me. This guy's a professional athlete. He's 6'6" 200+ pounds of mostly muscle. She's probably a minimum of 75 pounds under that weight. Supposedly, they took a tour of the hotel. If this is true, the knee probably wasn't that sore. If it was, what is he doing walking around a large hotel for? Why didn't he get wheeled up by one of his bodygaurds? Again, I'm not saying I buy the story, but I don't see how it's way outside the realm of possibility either. Oh, I know. I do take issue with judgment being drawn before all of the evidence is presented, but frankly, I'm more concerned that the wheels of justice turn in a nonprejudicial manner than that the average citizen who won't be called to serve be unbiased. Of all the people in America, this is one guy who doesn't have to worry about getting a fair trial. He's going to have all the money in the world for his defense. He's got a spotless record previous to this. He's in one of the easiest trials around to prove reasonable doubt. (a case where even his DNA and other physical evidence won't be enough to convict by themselves) Don't worry about Kobe getting a fair trial. Walk down to the courthouse and look for some guy accused of rape with a public defender. . . there is someone you need to pray for. TroyF

10-10-2003, 07:24 AM	#14
Jon High School Varsity Join Date: Oct 2000	TroyF: Not all public defenders are bad. It's just a stereotype that they aren't that great. Shows like Law adn Order adn things like that just foster the stereotype. Here in New York, The Legal Aid Society represents indigent clients adn they do a good job. They regularly stop the D.A. before they even get an indictment. It's just not publicized in the press. And, it's my understanding that the pubic defenders in Colorado aren't that bad either. PD's get a bad rap because the only publicity they get is bad pubilcity.

10-10-2003, 01:45 PM	#19
SackAttack Head Coach Join Date: Oct 2000 Location: Green Bay, WI	John, Let me clarify. I'm not suggesting that the woman's sexual history somehow makes her less credible, or that it should be held against her. I'm simply saying that the question posed was valid - could her injuries be consistent with the behavior suggested? If the answer is yes, then those injuries weren't necessarily inflicted by Kobe, and that does tend to damage the physical evidence presented by the prosecution. If the answer to that is no, then the bruising added with the presence of Kobe's DNA becomes more compelling. That said...the fact that the woman's blood was found on Kobe's shirt does tend to set some alarms off for me. That's going to be awfully tough to explain.

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