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Legal experts: Kobe case is weak
Accuser's mental instability damages credibility
Updated: 6:05 p.m. ET Dec. 18, 2003LOS ANGELES - Has a small-town prosecutor made a big-time error in pressing rape charges against one of the nation’s most famous basketball stars?



REUTERS & NBC'S VIEW ON K FABER
http://www.msnbc.msn.com/id/3681772/

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That’s the consensus of many legal experts after lawyers for Los Angeles Lakers star Kobe Bryant charged this week that the 19-year-old woman who accuses him has a history of mental illness and suicide attempts.

Legal experts say the case’s real weakness lies in the credibility of Bryant’s accuser, which is fast eroding under an unstinting defense attack that may torpedo the case.

In motions filed this week, defense attorneys asked a judge to let the jury hear evidence that the woman, who accuses Bryant of raping her in his posh Colorado resort hotel room last June 30, attempted suicide twice this year and was taking anti-psychotic drugs used to treat schizophrenia.

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Legal experts disagreed on whether defense attorneys Pamela Mackey and Harold Haddon would succeed in getting that evidence admitted at trial, but most believed it would be devastating if they did and that even without it, the prosecution’s case was fraught with potential minefields.

“That would be the bomb on the top of the prosecution’s case,” Robert Zatorski, former Hudson County, New Jersey, chief prosecutor, said. “The jury is going to feel, ’How can we believe anything this woman says?”’

Zatorski, now a criminal defense attorney, also wondered whether Eagle County District Attorney Mark Hurlbert knew about the alleged victim’s mental health history before he filed charges that appear to be based largely on her account of the incident.

“It’s a question of consent and that is one of the hardest things to deal with from a prosecutor’s point of view,” Zatorski said. “If I were him ... I would be very concerned about bringing an indictment ... with the evidence of a victim who has so many credibility problems.”

During the Oct 15 preliminary hearing, prosecutor Gregg Crittenden reminded the court that there was more evidence in the case than just the accuser’s words. He insisted that this was not “a hearsay” case.

“He held her by the back of the neck with his hands during sexual intercourse. He pulled down her pants. She said no. He lifted her skirt. She said no. He bent her over and penetrated her from behind and she cried,” Crittenden said in court.

Denver-based defense attorney Larry Pozner predicted that getting the mental health evidence before a jury would be “a big fight,” but said prosecution’s case already has fatal flaws.

“The evidence doesn’t support what she said,” Pozner, former president of the National Association of Criminal Defense Lawyers, said. “There was no bruising, no yelling, she looks normal afterward. She goes to his room knowing that there would be an encounter -- she admits this. There is substantial reasonable doubt already.”

Compounding Hurlbert’s problems, Pozner said, is a detective’s testimony during the preliminary hearing that the woman told police that she did not tell Bryant to stop during the encounter.

“That is fatal,” he said. “The prosecution has to hit a perfect game ... and they are losing credibility fast.”

Pozner and prominent Denver defense attorney Scott Robinson believed that Hurlbert’s hand was forced by political considerations and by Bryant’s precipitous arrest by the Eagle County Sheriff’s Department.

“We have a sports superstar -- from Los Angeles no less --visiting our fair community and, according to a young woman who is a member of our fair community, he violated her,” Robinson said.

“The political reality is that Hurlbert could not ignore the reality of a sex assault allegation,” Robinson added. “It was pretty much inevitable that he would file the case and let a jury decide.”

Robinson doubted whether defense attorneys would be able to convince the judge to admit either the alleged victim’s medical history or evidence that she had sex with another man after her encounter with Bryant, but said it did not matter.

“The prosecutor has more than an uphill battle. They have a climb to Pike’s Peak, and that’s assuming the defendant is not a well-liked celebrity and doesn’t have top-notch lawyers.”

Reuters