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WILL FAME WORK AGAINST KOBE BRYANT?
By Dean Tong, Forensic Consultant
September 15, 2003
If Kobe Bryant were an accused man by any other name, there would be no question of his right to face his accuser at his Oct. 9 preliminary hearing in Eagle, Colo.
But Bryant is not a nameless John Doe; he is a basketball superstar, and his legal travails are anything but ordinary. His Sixth Amendment rights allow him the right to call his accuser to testify at his preliminary hearing. At the hearing, the judge determines if there is enough evidence for a trial.
Bryant's attorneys have subpoenaed his 19-year-old accuser to appear at the hearing, a move fought vigorously by the Eagle County District Attorney who instead proposes having the woman appear by videotape.
Throughout his legal proceedings, Bryant has seen evidence that he will not be treated with the same consideration given to an unknown defendant. To date, he has been required to personally appear before the court at his arraignment, a formality that the district attorney would have foregone in a lesser-known out-of-state defendant charged with the same offense.
The latest move by District Attorney Mark Hurlbert to tread on Bryant's Sixth Amendment rights does not bode well for the basketball star's rights to a fair trial. For all of his money and fame, Bryant will not get a fair adjudication of the charges he now faces, and he has ever reason to be afraid.
The timing of Bryant's legal troubles could not come at a worse time: The Colorado Springs U.S. Air Force Academy has been embroiled in its own sex abuse allegations, and all eyes are on Bryant to see whether the D.A. will take a tough line against sexual assault allegations.
The U.S. Constitution affords defendants the right to face their accusers and to due process so that the court can size up their testimony, their personal credibility and any forensic tests that may be available. Bryant's case rests largely on the testimony of his teenage accuser, and allowing her to forego a personal appearance at the hearing will deny Bryant's attorneys a chance to question her, and for the judge to assess whether her testimony is believable, which is infinitely more difficult to discern in a videotaped testimony.
Instead, the D.A. proposes offering live testimony of the Sexual Abuse Nurse Examiner - a victim's advocate - as to the alleged victim's state of mind and physical injuries. As a victim's advocate, the nurse cannot be expected to give an unbiased accounting of facts and details. Her job is to support and believe the victim. "Innocent until proven guilty" is simply not in her job description.
Ironically, accused killer Scott Peterson has a better chance at justice than Bryant. Peterson's case rests largely on forensic evidence, meaning that he can bring in his own legal experts to examine the evidence and testify as to their own conclusions about its meaning and relevance. Bryant has admitted to committing adultery with his accuser, leaving the D.A. to prove the rape largely through the woman's own words, a so-called "he said, she said."
Bryant will be forced to prove a negative - that he did not rape his accuser - which puts him at a huge disadvantage at trial. The D.A.'s experts will undoubtedly provide emphatic support of the charge against Bryant, as the prosecution has a built in confirmatory bias, where it seeks to identify evidence and information that supports its allegations rather that provide an independent investigations of the facts and personalities involved.
If Bryant is to have a fair trial, it will be up to him to cut the D.A.'s biased experts off at the pass: Bryant must commission his own experts to conduct an examination of the facts. Having guided thousands of clients facing sex-abuse allegations over the past 10 years, I have found that the only way to ensure freedom for those innocent of sex-abuse allegations is to undergo a specific battery of testing , including a penile plethysmograph - a test that measures an individual's propensity toward sexual offenses - administered by an independent examiner, in addition to psychological and other forensic testing by independent experts not beholden to the prosecutor's agenda.
Unfortunately for Bryant, fame has only brought him greater and unfair legal challenges. Proving his innocence will cost Bryant a great deal of money, his privacy and, most likely, his reputation.
Fame may have its perks. Too bad for Kobe Bryant, justice is not one of them.
� 2003 - Dean Tong - All Rights Reserved
Dean Tong is a nationally known forensic consultant and author of the critically acclaimed book Elusive Innocence (Alpha Publishing, 2002). He may be reached at 1-800-854-0735 or via his website www.abuse-excuse.com E-Mail: DeanTong@aol.com
"The U.S. Constitution affords defendants the right to face their accusers...
Bryant's attorneys have subpoenaed his 19-year-old accuser to appear at the hearing, a move fought vigorously by the Eagle County District Attorney who instead proposes having the woman appear by videotape."