How Silence Handcuffed Bryant's Accuser

Aug. 26, 2004 -- Court-imposed silence hasn't been golden for Kobe Bryant's alleged sexual assault victim.

Jury selection in Bryant's sexual assault trial is scheduled to begin Friday, but there has been speculation for weeks that the alleged victim may decide not to testify, which would likely prompt prosecutors to drop the criminal case. The rumors began last month when a clerk in Colorado's Eagle County Court mistakenly posted a sealed document on the court's Web site.

"This case is quite unusual in that the gag order was violated by the court itself," said Jim Cohen, a law professor at Fordham University in New York. "It really undercut the gag order in a very fundamental way."

Bryant, 25, has pleaded not guilty to sexual assault for allegedly attacking the woman on June 30, 2003, while he stayed at a Vail, Colo., resort where she worked. The Los Angeles Lakers star admits he had sex with the woman, who was 19 at the time, but insists it was consensual.

The accidentally posted document revealed the alleged victim's name, which has been withheld. It also included testimony from an expert witness who said DNA evidence suggests the alleged victim had sex with someone soon after her encounter with Bryant. The woman, through her attorneys, has denied having sex in the days following the alleged rape, and prosecutors contend the DNA evidence may have been contaminated.

This was the third time the court had accidentally posted sealed court documents in the Bryant case. The alleged victim's attorneys complained that her privacy had been violated and that the court's gag order prevented her from responding fully to the defense insinuations and accusations made public by the postings. The court-imposed gag order that was designed to protect the alleged victim may have hurt her more than any potential cross-examination by Bryant's defense attorneys in a criminal trial.

Irreversible Damage?

Since the last accidental posting, the judge in the case has loosened the gag order. Parties on both sides are allowed to talk to reporters in some circumstances but cannot comment on expected testimony, Bryant's guilt or innocence, plea agreement possibilities and the character and credibility of the alleged victim.

But arguably, Cohen said, the damage has already been done. Thanks to legal leaks and repeated blunders by the court, potential jurors have already heard reports that could undermine the alleged victim's credibility and seem to bolster Bryant's defense.

"The gag order is supposed to protect both sides, to prevent prosecutors and defense attorneys from making comments and essentially trying the case in the media," Cohen said. "It's designed to prevent the jury pool from being tainted and potential jurors making decisions about the case from what they hear in reports about things that may or may not come into evidence at the trial."

Gag orders are also supposed to prevent the public relations wars that are common in high-profile cases like Bryant's. After being formally charged with sexual assault — and before the gag order was imposed — Bryant appeared before reporters with his wife at his side. He said he had committed adultery, but maintained that the sexual encounter with his alleged victim was consensual.

"The press conference was necessary for Kobe Bryant and it was what I thought was an effective way to get his side of the story before the gag order was placed," said Ronald Carlson, a law professor at the University of Georgia.

After the gag order was placed, Bryant's defense team questioned the alleged victim's mental stability and sexual activity in the days following her encounter with Bryant in court filings — some of which were accidentally posted.

Prosecutors could not respond to any leaked allegations because of the gag order. But the young woman's mother, in her only public statement, tried to remind the public last May that her daughter was not a criminal defendant. At a victims' rights rally, she said: "I would like to thank my daughter for teaching me about courage."

Initially, public attention was primarily focused on Bryant's alleged actions and the disintegration of his clean-cut image. But media leaks and courtroom blunders slowly shifted attention to the alleged victim, and she was being tried in the court of public opinion.

"There is no question that in the Kobe Bryant case the gag order was very damaging the alleged victim and the prosecution's side of the case," said Carlson. "There was information that was distributed by informal means and by leaks that tarnished her reputation and the credibility of her testimony. There was very little of those leaks that affected the Kobe Bryant side of the case in that way. So, definitely in that particular war of pretrial publicity, the prosecutors and the alleged victim lost."

A Civil Suit

Some critics argue that perhaps the gag order in the Kobe Bryant case was too far-reaching — it applied to all parties linked to the case. For instance, the gag order in the trial of Scott Peterson, who is accused of killing his pregnant wife, Laci, and their unborn son, is less sweeping.

That order covers prosecutors and defense attorneys and all witnesses who may be called to testify — including parents of the defendant and the victim. But, despite complaints from defense attorney Mark Geragos, it does not apply to attorney Gloria Allred, who is representing Amber Frey, Peterson's former mistress, who has been called the prosecution's star witness. Allred has repeatedly spoken for Frey and made suggestions about Peterson's alleged guilt on the talk-show circuit.

Since the last accidental Web posting in the Bryant case, the alleged victim's attorneys have said that her faith in the criminal justice system has been shaken. She has filed a civil lawsuit against Bryant, whose sexual history would come under the same scrutiny as his alleged victim's in a civil case.

The civil suit sparked criticism from legal experts who say the defense could argue at the criminal trial that the woman's allegations are monetarily motivated. But, Cohen said, it may have been her best — and perhaps only — way to respond to the allegations made by Bryant's defense attorneys. Given the leaks, the alleged victim and her attorneys may not believe a jury could look at her case fairly in a criminal trial.

"I don't believe they're going to go to a criminal trial," Cohen said. "They've carefully orchestrated a civil suit where the victim can say, 'I have lost faith in the criminal justice system. Therefore I have no recourse but to seek justice in the civil system.' "

Still, the way the alleged victim has responded — or hasn't responded — to the Eagle County court's accidental leaks may have nothing to do with jury fairness or violation of privacy but her credibility.

"Attorney representation is in many ways rooted in fact," Cohen said. "The alleged victim's lawyers' failure to aggressively respond to the leaks may — may — have nothing to do with the gag order at all. It may be that they may not have a response at all and they may be hiding behind the [gag] order."