Posted on 06/21/2004 5:16:25 AM PDT by Hawk44
EAGLE, Colo. - In what is considered a first in Colorado courts, prosecutors and Kobe Bryant's lawyers are wrangling over details of how to guide jurors in determining the NBA star's guilt or innocence.
Defense attorneys want state District Judge Terry Ruckriegle to tell jurors they must acquit Bryant if they determine the alleged victim consented to submit to sex.
That issue is among several brought up in the sexual assault case against Bryant that have not come up before in Colorado courts. Bryant's high-powered defense team has flooded prosecutors with paper, filing motions and seeking rulings on anything they believe could lead to an acquittal, or a reversal on appeal if Bryant is convicted.
The Los Angeles Lakers (news) guard was scheduled to return to Eagle on Monday for a two-day hearing, during which the judge could set a date for the trial. One more pretrial hearing is scheduled for late July.
In a case that has generated widespread publicity on topics including graphic details of the encounter between Bryant and a then-19-year-old hotel worker, a dry discussion over legal technicalities pales.
But the jury-instruction debate is a fight over fundamental questions that could determine whether Bryant is convicted on a charge that could send him to prison for life.
"It's earthshaking in a sexual assault consent-defense case, but it has none of the pizzaz of rape-shield motions and other motions that are about a fact rather than about the law," said Larry Pozner, a former president of the National Association of Criminal Defense Lawyers.
Part of the hearing will deal with the "rape-shield" motion filed by Bryant's lawyers, seeking to introduce information about the alleged victim's sex life in the days surrounding her encounter with Bryant.
Under the defense's proposed jury instructions, prosecutors would have to prove separately and beyond a reasonable doubt that the woman did not consent to submit to sex.
Prosecutors say the type of assault Bryant is charged with includes an element of submission — "against the alleged victim's will" — meaning the question of consent to submission does not apply. They also contend the defense is mistaken in saying prosecutors must prove Bryant knew the woman did not consent.
"These are extremely interesting and important legal issues that legal scholars debate and judges must decide, but they don't play well on TV, they don't write up well in the papers," Pozner said.
Appeals based on mistakes in jury instructions are common, lending additional importance to the issue, said former prosecutor Karen Steinhauser, a visiting professor at the University of Denver College of Law.
"It's all technicalities, but it's technicalities that make the difference in terms of whether a conviction gets sustained or not," she said.
Bryant, 25, has pleaded not guilty to felony sexual assault, saying he had consensual sex with the alleged victim at a Vail-area hotel last summer. If convicted, he faces four years to life in prison, 20 years to life on probation and a fine of up to $750,000.
Also scheduled for this hearing is the conclusion of arguments on the relevance of the alleged victim's sex life, which will occur behind closed doors. Another jury-instruction matter is expected to be brought up as well: Bryant's attorneys want jurors to be told that investigators failed to collect evidence that could suggest Bryant is innocent.
What legal caca is this? The prosecution of this case is horribly one-sided aginst males.
The transcripts of the instant messages is now released to both sides. I believe that this will either move the case forward or it will be withdrawn.
So I expect Kobe to sign with the Nuggets.
Right away when I heard the prosecution wanted to retest some DNA, I surmised it was not because they didn't like the original results they received, but to combat some cockamaimie defense strategy. Sure enough, from the above article:
• The defense was provided all the evidence in July 2003, except for a small bit of consumptive evidence, even though they didn't ask for it until Nov. 21, 2003. The defense then did nothing with that evidence for four months.
~snip~
• Hurlbert said a defense request to bar prosecutors from challenging the defense DNA test results is unprecedented
~snip~
• Hurlbert said a defense request to have the charges reduced has no basis in case law.
~snip~
"Given that there will be at least a three-week postponement on test results that are not relevant in the first place, the people feel that retesting at this time only serves to unnecessarily delay matters further," said Hurlbert.
~snip~
I am confident the retesting was going to be done to buttress the original findings, not to seek "new" results as some posited here. It was an effort to produce two separate lab results to combat the defense spin that will be coming down the pike. That appears, as it always has, to be the only logical conclusion.
Odd headline, but I noticed the split second Pietrack volunteered his DNA,the defense never mentioned him again as possibly having sex with the accuser in "less than 15 hours" after the Bryant encounter. They merely shifted focus to Herr who has not volunteered his DNA at this point, but has said under oath he was not with her during that time, so both the accuser and Herr have said they were not together then.
Does it really matter WHO the next guy was if she had his DNA on her "underwear, inner thigh and perineum" ?
So far the story is the underwear she wore to the exam was dirty (I read it came from a suitcase) and the substance on the underwear came in contact with her skin and that's how minute bits of DNA were found on the underwear and her skin.
I guess we'll find out when the case comes to court. The "dirty underwear" claim seems rather odd. While it's within the bounds of possibility, it does seem to have surfaced only recently.
No, it did not surface recently. It has been the story from the start.
Keep trying. The found dry semen and also wet semen on her person that was not Kobe's. The semen was not old, it was 'fresh'.
Been who's story? I have heard that nowhere but rank speculation in the press. The prosecution nor her attorney have ever said her underwear was dirty.
Trying? Yes, I'll keep trying to separate fact from spin. Like any good freeper should. I'll not bother going over testimony and documents with you. Suffice to say, you seek to "correct" me when it isn't I who needs it.
So, if she did not consent, but did not convey this to Bryant, he's still guilty?
That's right. There's no such thing as "implied consent". You can just walk up to a woman and start mauling her and then claim you didn't know she didn't want it.
That should say CAN'T just walk up etc.
I'm a little confused. I assume you meant "You just can't...". Is that correct?
Logically, though, implied consent only becomes an issue when there is a gradual move toward intercourse. For instance, a man kisses a woman, and she "kisses back". He then puts his hand on the small of her back, and she snuggles up. As his hand moves south, if she doesn't say no or otherwise object, she has implied by her omission that she consents to having him touch her butt.
That may not be legally true (legality and logicality rarely line up completely, if at all), but that's the logical definition for implied consent. In this case, the woman apparently agreed to come up to his room surrepticiously, agreed to come in, and then it's a he-said/she-said that will be resolved in court.
Did I misstate or miss anything here? (Comments welcome)
I'm pretty sure he's guilty now. We don't have all the details yet, but I'm guessing she agreed or failed to resist to "something" and resisted or said no to "something else". He then forced her or made a continued attemp to do that "something else". I have no idea what the "somethings" are.
The defense basically wants the jury to be told that her saying yes or not resisting at the beginning gives Kobe a free ride to anything else he wanted as the encounter continued. She only gets one chance to say no, and after that she's a receptacle.
Yes, I meant "you can't". As for the rest, I pretty much agree with the post immediately following yours: Someone can say "yes" and then change her mind, and the other party darned well better stop at that point.
Absolutely. IIRC, there has been some talk about Kobe having immediately ceased activity when she did say "no".
At any rate, I don't think we disagree, really. In the modern world, "no" always means "no", and lack of a "no" doesn't always mean "yes". I hope this case resolves itself on the side of justice, based on the full testimony and evidence.
Thanks for clarifying your previous post.
I heartily agree.
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