The defense scored a major victory in the Kobe Bryant case today. The judge ruled the prosecution cannot refer to the accuser as a "victim.' This is the right decision. In order for the accuser to be a victim, there has to be a crime of which she was the victim. Kobe's defense is there was no crime, just consensual sex. By calling her a victim in front of the jury, the jury is in effect being told there was a crime.

A rape charge where the defense is consent is not like a murder charge where we know in which it's acknowledged a crime occured and it's just a question of who did it. In that kind of a case, there is a victim who is dead.

This decision levels the playing field and causes no detriment to the prosecution.

We were at the studio today getting ready for our Terry Nichols' segment on MSNBC's Abrams Report when we were told there was big breaking news in the Kobe Bryant case and we were switching to cover Kobe Bryant instead. (Only in America would the case of a basketball star charged with sexual assault arising from an admittedly initially consensual encounter trump the news that a man had been convicted of 161 counts of first degree murder in the second largest case of domestic terrorism in history.) So, here's the big Kobe news:

DNA test results from the Colorado Bureau of Investigation reportedly show that tests taken the night after the incident at the hospital during the "rape exam" show there is a white male's semen not just on the accuser's yellow knit underwear, but inside her body (and possibly on her thigh). If so, the exuse of wearing "dirty underwear" to her rape exam is probably out the window. Plus, it may mean she lied to investigators when she told them the last time she had sex with someone other than Kobe was two or three days before, with her boyfriend, who wore a condom.

The defense has been alleging for months that the accuser may have had sex with someone after having sex with Kobe and before arriving at the hospital for her rape exam. They have said in pleadings several times that the pinpoint lacerations the accuser suffered to her posterior forchette were the result of repeated consensual activity within a short period of time, not sexual assault. They have filed motions alleging that the accuser has had sex with two prosecution witnesses--and they have requested that two specific white males be ordered to submit to DNA testing. If these test results bear that out, we say there's a good chance this case is over.

Kobe's pre-trial hearings continue tomorrow in Eagle. We're scheduled to review the day's events again on the Abrams Report, MSNBC, 6 PM ET. At issue will be whether the defense can call two crime scene experts to testify that the Eagle authorities botched the investigation by failing to collect important evidence that could have established Kobe's consent defense. Our view, from yesterday's show:

Kobe Bryant's lawyers have requested permission to call two expert witnesses at Thursday's hearing to show the police conducted a shoddy and incomplete examination of evidence in Kobe's hotel room that would have shown his innocence.

[Attorney Hal] Haddon said the men “closed their eyes” to potential physical evidence at the site of the alleged crime that might have confirmed Bryant’s innocence. “The failure to conduct the most ’regular’ police procedure — investigation of a crime scene and collection of physical evidence — suggests both a bias against Mr. Bryant and a willful or reckless unwillingness to consider the possibility that Mr. Bryant committed no crime and that the accuser was lying about the sexual encounter for ulterior motives,” Haddon wrote.

....Defense attorneys say crime scene investigators should have taken more photos, collected the chair that was the site of the alleged assault, examined carpet near the chair and collected material in waste baskets.

We'll be talking about the case today during the second half hour of MSNBC's Abrams Report ( the show begins at 6PM ET).

A feminist, a Laker fan and a teacher struggles with determining where consent ends and rape begins.

Is it rape, a criminal act of violation, when you have willingly joined someone late at night? He hasn't drugged you or strong-armed you, as far as anybody knows. But sometime between entering the door and rushing out of that same door, you became uncomfortable with the sex and wanted it to stop. He didn't, and you're furious. You feel violated, and rightfully so. But is it rape? Did Kobe Bryant force this woman to have sex? Or to finish what they both had started?

Our view has been that "no" means "no"--provided the "no" has been effectively and clearly communicated in a way that any reasonable partner would have understood.

Kobe Bryant is expected to enter a "not guilty" plea today, which will result in a trial date being set within six months. Yesterday's hearing and this morning's were behind closed doors. The accuser attended as a spectator.

The defense is also asking for expanded voir dire-- they will want to weed out jurors seeking fame or fortune from serving on a jury in such a high profile case. We also think race will be an issue in jury selection.

Today the Judge will hear arguments about whether the accuser can be referred to as "the victim" at trial. We hope he rules "no"--that pre-supposes a crime has been committed of which the accuser is a victim. It implies Kobe's guilt. There is a name in the law for the complaining witness in a rape case--prosecutrix--maybe they should just call her that.

Denver defense attorney Jeralyn Merritt thinks race may well be an issue with potential jurors, given that the case involved a black man charged with a white woman's rape. Merritt said you don't ask the potential jurors if they're prejudiced because everyone will deny that they have a prejudice against racial minorities.

"The trick is to ask open-ended questions that will draw them out," Merritt said. "You want them to talk about their biases and prejudices."

[Defense Attorney Larry] Pozner agrees. "America is not yet free of racism," he said. "The American system is not yet an ideal place for either side."

We'll be discussing this week's hearings today on MSNBC's Abrams Report, 6pm ET.

Two and half days of hearings in the Kobe Bryant alleged sexual assault case ended today with no rulings on the admission of the accuser's sexual history or the suppression of Kobe's statements to sheriff's investigators. However, the Judge did set May 10 as a date for Kobe to plead "not guilty". This is the date that will start the speedy trial clock running.

Our source in the courtroom tells us that the Judge pressed the accuser's attorney quite hard on why he chose to file a public motion for his client seeking an accelerated trial date--with a letter attached from the accuser's mother. Our source says the questioning was so pointed s/he was left with the impression the Judge was accusing the accuser's lawyer of grandstanding for the public.

In a twist from the usual practice, it seems the Prosecution has filed several motions in limine to prevent the defense from presenting certain expert witnesses. Usually, it is the defense that tries to exclude evidence. What doesn't the prosecution want the jury to hear?

The Judge in the Kobe Bryant case today denied Kobe's request for his accuser's medical and psychological records. The issue was whether the accuser waived her privilege in the documents by talking about her treatment with other people.

Larry Pozner, past president of the National Association of Criminal Defense Lawyers, said the defense still can seek testimony from people who have direct knowledge about the woman's purported suicide attempts and prescription drug use. "The defense has a bathtub full of evidence on her suicide attempts that is not in the medical records – it's just plain old-fashioned (eyewitness) testimony," Pozner said.

The Judge has not ruled yet on whether Kobe can introduce evidence of the accuser's other sexual encounters that allegedly occurred around the same time as the incident with Kobe. Kobe's defense is arguing that these acts, rather than acts with Kobe, maybe the cause of any claimed injuries. Hearings on the rape shield law and the suppression of Kobe's statements will resume Monday and Tuesday. Wednesday there will be hearings on a defense request for discovery and the accuser's request to set a trial date.

You can read the Judge's ruling here. (pdf)

Kobe Bryant's lawyers have responded to his accuser's and the prosecution's request to set a trial date. They point out what is obvious to us, that Kobe's life also is being ruined by the criminal case against him.

"The accuser's false accusation of rape has exacted a personal and professional toll on Mr. Bryant that is as incalculable as it is indescribable. No one looks forward to this case being over more than Mr. Bryant," his attorneys Pamela Mackey and Hal Haddon said in a court filing. Bryant could have entered his not guilty plea when he first appeared in court, but he has been proceeding in accordance with court policy, his lawyers said. "Kobe Bryant requests that this court accept his not guilty plea and set a trial date consistent with the Fifth Judicial District's policy and this court's schedule," the defense said.

Kobe's lawyers point out that the delay is not attributable to Kobe:

Instead, the defense blamed delays on disputes over evidence testing and handing over of evidence so the defense could conduct independent testing on the accuser's underwear. The defense maintains that prosecutors have not turned over evidence that could point to Bryant's innocence as prosecutors in the United States are required to do.

Kobe's lawyers dispute the accuser's mother's contention that her daughter "was forced to quit school and was being followed by the media and the defense."

The defense said such statements were incorrect or misleading and "calculated to create public sympathy."

Kobe Bryant's accuser testified for 3 hours behind closed doors today. She did not appear upset going in or during the break. We read one report that she seemed shaken when it was over, but we're told by someone present at the courthouse that it isn't so. The accuser was observed right after she left the stand out back smoking a cigarette, talking to her lawyer and looking normal.

The bellhop is on the stand now and has been on for a while. The defense has alleged that the accuser had sexual relations with two prosecution witnesses. He is the first person to have seen her when she came out of Kobe's room. If they were intimately involved at the time, it could show bias and negatively impact his credibility as a trial witness.

We think the fact that the questioning only lasted three hours shows the defense was focused, they knew what they were looking for and they got in and out.

Another witness was the accuser's roommate at University of Northern Colorado. The witnesses for the hearing have been put in another courtroom to wait their turn. We're told that there are at least 15 of them--and some are still driving up. It sounds unlikely that this portion of the hearing will be over today.

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Kobe Bryant's accuser will testify tomorrow about her sex life--behind closed doors.

The hearing will be held to determine whether details of the woman's sex life can be introduced at Bryant's trial. The defense says the information should be admitted because it could show that the woman's injuries were caused by another sexual partner and that she had a "scheme" to sleep with Bryant, possibly to gain the attention of an ex-boyfriend. The prosecution fought to limit defense questioning, but was rebuffed by the Colorado Supreme Court. The hearing will be the first time the woman has faced Bryant since their encounter last summer.

We'll be talking about it tomorrow on Fox (12:20 ET)- and on MSNBC on the Abrams Report around 6:30 ET.

[Fox cancelled due to coverage of 9/11 hearings....Abrams may do the same. Fox moved to 9:30 ET Thursday--Abrams will also do Thursday]

Big win for Kobe Bryant today. The Colorado Supreme Court has declined to hear (PDF) a prosecution appeal of the trial court's order allowing the defense to question the accuser at a closed door hearing about her past sexual history.

Bump and Update: Kobe's lawyers say his accuser may have had sex within 15 hours after having sex with Kobe:

Kobe Bryant's lawyers said today that the woman accusing him of rape had sex with someone else less than 15 hours after her alleged assault by the NBA star. The accusation was made in a court filing in which the defense argued that the woman's sex life should be admissible at Bryant's trial, despite Colorado's rape-shield law.

The defense said the woman had "multiple acts of sex" in the three days before her June 30 encounter with Bryant. Bryant's lawyers also said she had sex with two prosecution witnesses, which could affect their credibility.

If one of those sex partners is the bellman, so much for his value as a "prompt outcry" witness. He'd hardly be an impartial witness. It also strikes us as rather non-credible that a rape victim would have consensual sex within 15 hours of being raped.

The defense won a key ruling today. The Judge ordered the prosecutors to turn over to the defense two pairs of underwear --one the accuser wore the night of the encounter with Kobe and one she wore the next day to her rape exam. The Judge was angry the DA's hadn't done it before and gave them 24 hours to do so.

Update: The Judge has delayed the testimony of Kobe's accuser until March 23-24. He is reconsidering a request to limit the questions she may be asked.

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Original Post:

One Denver news station reported tonight that the defense in the Kobe Bryant will not be moving for a change of venue and the trial will be held in Eagle, probably in August or September.

Hearings resume Monday morning, and the accuser is scheduled to testify on Tuesday.

[comments closed. Comments are for commenting, not reprinting news articles. We can't afford the bandwidth. Also, this thread is about the Kobe Bryant case not Mike Tyson.]