Attorney Andrew Cohen analyzes legal issues for CBSNews.com.
Less than one month before the scheduled preliminary hearing in Kobe Bryant's sex assault case, defense attorneys and prosecutors already are engaged in a tense, tactical battle over in-court witnesses and out-of-court evidence and perceptions.
If these early clashes are an indication of what is to come down the road toward trial, the Bryant case may turn out to be not just the most heavily publicized trial in Colorado history but one of the most bitterly contested ones as well.
The big fight now is over whether Bryant may force his accuser to the stand as a defense witness on Oct. 9. On the undercard is a fight over whether the defense may gain access to medical and hotel records of the 19-year-old woman who says that Bryant raped her in June in a hotel room near Eagle.
It is possible that the defense could win both battles and still lose at trial. It is possible that the defense could lose both fights and still see Bryant acquitted by jurors. But it is impossible to know now precisely how the resolution of these issues will shape the course of the case. So let's start with the witness fight and leave for another day the fight over documents.
For Bryant's attorneys, the decision to subpoena the alleged victim is a no-brainer. Just issuing the subpoena served a purpose by reminding Bryant's accuser that her charges would come with a psychic price — not exactly gentlemanly conduct, to be sure, but this ain't a pick-up game. Remember, Bryant is looking at significant prison time if he is convicted.
If the judge quashes the subpoena, the defense at least gets to display the impression to potential jurors and media potentates alike that it feared nothing from her testimony. If the judge were somehow, shockingly, to permit the defense to examine the young woman under oath, Team Kobe could begin from the very outset of the case to try to damage her credibility and thus the prosecution's case. From Bryant's perspective, nothing bad can follow from the issuance of the subpoena. Any decent defense team would have done the same.
And any decent prosecutor would oppose the move, which is precisely what Mark Hurlbert did earlier this week. Hurlbert told Eagle County Court Judge Frederick Gannett that he should block the alleged victim from testifying for the defense because it would cause her "anxiety and intimidation" and because she could not say anything that would preclude the government from meeting its low burden of proof at this stage of the case.
Hurlbert also reminded the judge that the defense has no right under Colorado law to present any of its own evidence at a preliminary hearing and that even the defense cross-examination of prosecution witnesses may be limited by the judge at the hearing since it is designed merely to have a "screening effect" and not to be a mini-trial.
Hurlbert is playing the right cards. Preliminary hearings are notorious for being pro forma, rubber-stamp proceedings that almost always result in a finding of probable cause. One noted criminal defense attorney told me this week that it is not uncommon for dozens to be resolved in a single afternoon.
Another experienced defense attorney told me that there are judges in the area who preside over these sorts of hearings until some intangible line of probable cause is crossed. At that point, the attorney told me, these judges simply interrupt the prosecution's witness and say "OK, I've heard enough. I find probable cause. Next!"
Prosecutors won't prevail on this issue because no one wants to hear what Bryant's accuser has to say; they'll prevail because the legal deck is stacked against defense witnesses at this stage of the process. You know the old saw about how prosecutors could get a grand jury to indict a ham sandwich? Simply extend that concept to a preliminary hearing and you get an idea of what is likely to happen on October 9th.
Even if the legal outcome is fairly certain, prosecutors used their motion to quash the subpoena to divulge, for the first time, that they intend to call to the stand at the hearing the police officer who initially questioned the alleged victim.
Accompanying the cop to the stand will be a videotaped statement by Bryant's accuser and some sort of electronic statement offered by Bryant himself.
This is standard stuff — the cop will guide the judge through the government's case until the judge is convinced there ought to be a trial.
The videotape is, by far, the most intriguing part of this proposed presentation. Why wouldn't prosecutors simply have their law enforcement witness paraphrase what the alleged victim told him? Why would Eagle County want to tip their hand to such an extent by unveiling early on in the case the statement made by the defendant's accuser? And does the planned use of the video give the defense added ammunition to haul the alleged victim into court at the prelim?
Here are my best guesses to those questions:
I think that prosecutors want to get the tape out into open court as quickly as possible in order to impact public perceptions (read: potential jurors) about the alleged victim (positive, they hope) and Bryant (negative, they figure).
Perhaps prosecutors also figure they had better be extra careful about meeting their "probable cause" burden because of the high-profile nature of the case. Maybe Hurlbert is a little concerned that Eagle County Judge Frederick Gannett isn't sold on what little evidence he may have seen in the case and may not find probable cause without the video.
And certainly prosecutors believe that there is little legal downside to trying to offer the video at this time since the defense obviously cannot cross-examine a tape or even rely upon its use to argue that they have a right at this time to confront Bryant's accuser.
The defense would have subpoenaed Bryant's accuser anyway but I suspect the impetus for the move increased after the defense viewed the videotape during pre-trial discovery.
Bryant's attorneys no doubt are concerned that the tape will be the focus of media coverage on Oct. 9 — if it is played in open court it almost certainly will be — and so they want to try to nullify its effect by getting the alleged victim into court.
The problem with this strategy is that Colorado law makes any defense inquiry of a victim focus solely upon the question of whether her testimony is "incredible as a matter of law." In other words, it won't be enough for the defense to argue that the alleged victim might in October say something different from what she said in June. Instead, the defense will have to convince Judge Gannett before Bryant's accuser is even permitted into the courtroom on Oct. 9 that she will say something that completely obliterates the credibility of her own statement to the police. This rarely happens and I don't see it happening now.
What will happen? My bet is that Judge Gannett will avoid making a ruling on the merits of the subpoena until after prosecutors present their evidence at the hearing. And then he will rule that since the government has met its low burden, there is no reason to require the alleged victim to take the stand.
Prosecutors will have achieved their goal. The defense will have taken its stand. And the judge will have avoided a ruling he wasn't absolutely required to make. Whether she wants to or not, Bryant's accuser will have her day in court. It just won't happen next month.
By Andrew Cohen