The Sports Curmudgeon®

When the charges against Kobe Bryant were announced a little more than a year ago, I heard about them via CNN in a hotel room in Peru on a trip that would take me to the Galapagos Islands. I did not get back to the US for about ten days so I had time to think about what I had heard and was a bit shocked to see some of the commentary about all this once I returned to a place where news availability is commonplace. I said then that I would refrain from any declaration of guilt or innocence until a jury rendered its decision on that matter. I’ve made a few snarky comments about the case in the last year or so, but now the criminal part of the matter is over, so I want to say a few things.

First of all, Kobe Bryant is innocent of rape or sexual assault in this matter. Let me be absolutely clear about that; these charges against him have never been proven in court to the satisfaction of a jury and so he is innocent. From what I have read, the case has been dismissed “with prejudice” and my understanding of that legal term is that the charges can never be brought to court again. That means that he will not be found guilty of rape or sexual assault in this matter at any time in the future either. So, without regard to whatever happened in the hotel room that night, he is innocent of rape or sexual assault.

Secondly, the outcome of the civil lawsuit filed in Denver by the young woman will have no bearing on Bryant’s guilt or innocence of the charges of rape or sexual assault. Her suit is analogous to the one brought against OJ Simpson after he was acquitted of two counts of murder. OJ lost that civil case and owes the families of the deceased persons a lot of money as a result of that loss, but it does not alter the fact that he was found innocent of murder. It does hinder his search for the real killers because he has fewer resources at his disposal with which to carry out that search. But I digress…

Only two people know what happened in that room on that night. So far, we have heard only one side of the story – Bryant’s – and second-hand or third-hand reports about what the other side of the story may or may not be. And so, unless there is a civil trial where there is testimony on all sides of the case, it is really a dicey proposition to try to assign guilt or innocence on the part of either party. Even with testimony under oath, I’ll bet there would still be areas of ambiguity that are open to personal interpretation.

All of this is in the realm of legal theory, there are some issues here that are more practical that I want to address. The citizens of the state of Colorado ought to be unbelievably angry today. I have no idea how much money and manpower has been devoted to this case but it was a lot more than three easy payments of only $29.95. The expenditure of the resources here means unequivocally that they were not spent on other law enforcement and prosecutorial activities. In ninth grade general science, they try to teach you about the Law of Conservation of Matter. In this situation, that means that you cannot spend the same dollars or commit the same person-hours to two different cases at the same time. So, the citizens of Colorado paid lots and lots of money to pursue this case at the expense of the pursuit of other cases. And in the end, they don’t get to find out if the investigation activities they paid for with their taxes were worth even a smidgen of skunk snot.

And given the recent history of law enforcement investigative results in Colorado, those citizens should really want to see if they got their money’s worth here. Let’s just say that I could be convinced that the police and prosecutors in Colorado couldn’t track down a wounded yak on a glacier. But this rant is about the Kobe Bryant case and not JonBonet Ramsey or the University of Colorado football team…

The DA still maintains his faith in the credibility and the truthfulness of the alleged victim here. Supposedly, the case collapsed when she announced that she would refuse to testify. Here’s my first problem. If the DA is theoretically there to find the truth – and that the trial is one critical mechanism for determining the truth – why did he not choose to use his subpoena power to compel her to testify? I leave the nuances of this argument to the lawyers who might read this, but I believe that the victim in such a case is served with a subpoena to appear and testify just as are other parties to the case. So if she is credible and truthful in the eyes of the DA, why drop the case?

People who firmly believe that Kobe Bryant did nothing wrong in that hotel room that night – other than adultery – have said that Bryant should sue the woman and Eagle County Colorado for the millions of dollars that he has lost in terms of endorsement fees based on the negative publicity about him. After all, now this whole matter turns out to have been sham from their perspective. Once again, I leave to the lawyer readers here the specific details, but often in such cases, the dropping of the charges by the DA is done in conjunction with a stipulation by the accused that there was sufficient evidence to give the DA probable cause to have pursued the investigation and the indictment and the charges that were ultimately dropped. That stipulation – if it were part of the dismissal of this case – would preclude such a suit against Eagle County. And in reality, it is only Eagle County in which there is sufficient money to make economic recovery even remotely possible. Suing a 20-year old woman, who was working part time in a hotel in the summer while contemplating her college major, is not how Kobe Bryant is going to recoup millions of endorsement dollars. And any such act on his part might appear predatory and vindictive which will not make him any the more attractive to sponsors in the future.

Remember, I said that only two people know what happened in that hotel room that night and I’m not one of them. And remember that I said that even trial testimony might not convince each and every person about the guilt or innocence of Kobe Bryant with regard to these charges. I stand by those statements even in light of what I am about to say. The behavior of this young woman from the time she reported the charges to the police confuses me more than just a little bit. I have no intention to assign blame or guilt here; I just don’t understand some of her actions.

I have never been raped or sexually assaulted. Therefore, I have to approach this from a point of view that cannot possibly include all the emotional and mental angst that would accompany such a situation. So, I’ll do this like Mr. Spock and try to be logical. When this woman went to the police to file her complaint, I have to believe that she recognized that some part of her personal life was about to become a whole lot less private than it was a week prior to her visit to that police station. If nothing else, she was going to discuss an act or acts of a very private nature with at least one police officer. At some point, she had to have a conversation with someone in the Eagle County District Attorney’s office about testimony in a trial and what that would mean and what cross-examination might be like. So, even if she were to say at that point that she did not want to pursue the charges, her private life would be less private than it had been. She chose at some level to compromise her privacy as soon as she chose to file the complaint with the police.

I acknowledge that there is a long distance between telling your side of a story to a police officer or two and the realization that highly competent defense lawyers are going to grill the living bejeepers out of you on a witness stand in open court. And I can easily believe that she concluded somewhere along the way that while it was unpleasant to talk about all of this with the police and the DA, it was intolerable to suffer through the rigors of a trial. I have no problem with that decision … except …

How does that square with the filing of the civil lawsuit? Once again, I leave the fine details to any lawyer-readers here, but as the plaintiff in the civil lawsuit who will claim that she was injured by the actions of the respondent, won’t she have to get on the stand and testify in open court under oath and be cross-examined by highly competent attorneys? I’m imagining myself on the jury of such a civil suit and wondering how I could possibly find for the plaintiff if the plaintiff sat there in the court but never testified under oath about what is alleged to have happened to her at the hands of the respondent. Or in this case at the “another part of his anatomy” . So, if she chose not to cooperate with the criminal matter because of the potential horror of the trial situation, then what is the civil suit all about?

I know several people – including two intelligent and educated women – who are skeptical about the charges here simply on the basis that going to the hotel room of a star/celebrity assigns at least half the blame to the person who does that in the case where something untoward happens. I can understand that position; I can’t bring myself to accept it in all cases. The question here is whether or not it is relevant to this case and absent testimony, I just don’t know. And I assert, neither do others.

Some people have said that this case is potentially damaging to victims in other cases. I urge you to take a deep breath here and think about this issue because it is not a simple one. And please remember that 99% of what you will hear about how this will hurt other victims comes from people who have a vested interest in victims’ rights and those kinds of issues. Just as you might be unwilling to take at face value the advertising claims about a household cleaning product because the people selling the stuff make the claims, listen closely to the arguments put forth in this arena too. And pay attention to who is making the arguments and what interests that person might have.

Victims’ rights advocates are appalled that the judge would allow testimony about this young woman’s sex life. I agree that it is not fair for rape victims to be grilled on their sexual histories, but from what was reported, the judge’s ruling here was based on some evidence that this woman might have had sex with another man (or men?) proximal to the time she claimed the sexual assault occurred. If that was the basis for the judge’s ruling, then I have to agree that it was a proper ruling because that information could exonerate the defendant. The rights of victims are certainly important; but if they ever transcend the rights of the accused to a fair and open trial on charges brought against him, then the scale has tipped waaay too far. When the defendant is denied avenues of inquiry that could demonstrate innocence, the judicial system begins t look like the Court of the Star Chamber or the Spanish Inquisition. Therefore, rhetorical flourishes aside, I’m not going to decry the judge’s ruling – which by the way was upheld on appeal – as something that will reduce the US Judicial System to some barbaric state.

Finally, I read on an Internet message board some assertions that the reason these criminal charges got dropped was because the lawyers for Kobe Bryant and the young woman agreed to settle the civil suit for $2-10M depending on which posting you happen to be reading at the moment and that the refusal to cooperate with the criminal complaint was a precondition on that settlement. Unless the person posting that message – under a nom de guerre of course – is really one of the attorneys involved or is the young woman or Kobe Bryant, that person posting that message can’t know for sure the veracity of that claim. However, it would seem to me that if either set of lawyers engaged in the kind of discussions that were alleged there, they would be guilty of obstruction of justice or at the minimum of a violation of the Code of Ethics. I’m not so naïve as to believe that such a thing could never possibly happen. However, I am confident that if such sub rosa communications had occurred, the fact of their occurrence and the specific content of them would not be readily available to some goof who posts notes on Internet message boards!

I wish I could conclude that all of this was over and done with. I doubt that. So for now, I’ll just wait for the other shoe to drop…

But don’t get me wrong, I love sports…

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