Sexual assault charges were dropped in the criminal case against Kobe Bryant on Wednesday because the alleged victim did not want to testify. District Court Judge Terry Ruckriegle dismissed the case under a deal that means no charges will be refiled. The civil case is pending.
Read the story:Rape Case Against Bryant Is Dropped (Post, Sept. 2)
Criminal defense lawyer Jeralyn Merritt was online Thursday, Sept. 2, at 11 a.m. ET to discuss and analyze the case.
Merritt is an attorney in private practice and was one of the principal trial lawyers for Timothy McVeigh in the Oklahoma City Bombing Case. She is the creator and author of TalkLeft: The Politics of Crime and lectures nationally on a variety of legal topics and has been a television analyst since 1996.
A transcript follows.
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
Jeralyn Merritt: Welcome. The Kobe Bryant criminal case is over. In my opinion, it should never have been filed. The facts were not in the accuser's favor and it was unlikely the prosecution would establish guilt beyond a reasonable doubt. Was justice served? I'll try to answer that and your other questions.
The only thing I can see here is that Kobe paid her off. If he said in his statement that he thought it was a consensual act, but she obviously did not, doesn't that qualify as rape?
Jeralyn Merritt: No. A misunderstanding is not rape. The statement was clearly one that was negotiated between the accuser's lawyers and Kobe's lawyers. It sets the stage for a civil settlement and likely was a condition she insisted upon before agreeing to ask the prosecutor to drop the criminal charges, but it's not an admission of rape. If Kobe thought the act was consensual, he had no intent to commit a crime.
Mt. Lebanon, Pa.:
So now the taxpayers of Colorado are raped financing a 3-ring joke of a prosecution for ... I can't recall how many months. Justice delayed then denied is justice abandoned.
So as an attorney, how would you like to represent this woman as plaintiff in the civil suit she now prefers to offer? And do you suppose a new jury will be sympathetic to her claims now knowing she didn't feel wronged enough to pursue the criminal case?
The hurdle of "proof" may be set lower in the civil proceeding. And though the prosecution fiddled while the "victim" burned, as a prospective juror her apathy to the case for the people has my doubt leaning strongly against her situation -- real or imaginary.
Knowing that my head-shaking disgust for her new tactic doesn't existence in isolation, what would you advise her to do?
Thanks much. Signed ... Incredulous
Jeralyn Merritt: Kobe's interests may best be served by settling the civil case now that the criminal case is gone. While you are correct that the accuser would face more detailed questioning in a civil case, so would Kobe. The accuser's lawyer has publicly said he wants to question Kobe about prior incidents with other women in an attempt to portray him as a serial sexual harasser.
Jeralyn Merritt: I would urge the accuser to take a quick settlement and move on with her life. Kobe's interests may best be served by settling the civil case now that the criminal case is gone. While you are correct that the accuser would face more detailed questioning in a civil case, so would Kobe. The accuser's lawyer has publicly said he wants to question Kobe about prior incidents with other women in an attempt to portray him as a serial sexual harasser. Both parties still have a lot to lose. The faster this case settles, the better, in my opinion.
Falls Church, Va.:
It seems to me that more than anything, the alleged victim
has been wronged by both the judge/court and the
prosecution team. My question: is there a precedent for
her suing them? It seems that her rights were clearly
violated, and the whole thing bungled. If she is not able
to seek redress for their actions, then the concept of her
only recourse being Kobe's pocketbook seems a bit odd.
The perspective I take is that arguably she felt harmed by
whatever happened between them. That is either the case
or she simply saw a payday. If the former is the case,
then she has a right to certain protections which were not
enforced. Does a citizen have a right to seek redress
against the governmental organizations responsible when
those rights are not protected?
Jeralyn Merritt: I believe the courts and staff would have immunity from liability to the accuser for mistakes that resulted in publishing her name and misdirecting the sealed transcript. Only if the accuser could show that an employee acted purposefully and outside his or her official duties, would there be liability.
Remember, this is a small county that is not used to such a high-profile case. Perhaps the court should have added more staff to reduce the risk of mistakes, but mistakes alone don't create legal liability for a governmental entity.
The dismissal of this case will surely rekindle the debate regarding the validity of the various "rape shield laws" within the broader context of the Rules of Evidence (and their theoretical foundations). Simply stated, rape shield laws, though well-intentioned, limit the constitutional right of confrontation that criminal defendants posess under the 6th amendment. In this particular case, a strong argument can be made that the CO rape shield law would have precluded the introduction fully probative exculpatory evidence. What is your take on the rape shield laws, and what is the proper balance that must be struck, between protecting 6th amendment rights on one hand, and encouraging victims to testify?
Jeralyn Merritt: I think Colorado's rape shield law worked in this case. The accuser's prior sexual history was ruled inadmissible. Only her contemporaneous sexual history, that which she may have engaged in within 72 hours of her rape exam, would have come into evidence.
The People chose to charge Kobe with a more serious form of sexual assault alleging he applied physical force and injured her. The 6th Amendment justly requires he be allowed to introduce evidence to refute the charge.
Silver Spring, Md.:
I think the key element that brought this case down was the evidence that suggested that this woman had sex with someone after Kobe. All the other evidence alone was not enough. Yes she had a history of instability and she went to his room. Even people who believe the stereotype that all black NBA stars are capable of this type of crime had second thoughts.
On another note, do you think there was some back door negotiations that said if you apologize and later on agree to pay more than the civil case cap (what is it), I will ask the prosecutors to drop the criminal case saying " I just can not go forward"? And ultimately settle the civil case for the agreed upon amount.
Jeralyn Merritt: I think that the turning point in the case was indeed the revelation in the court transcript that a defense expert held the opinion that the accuser engaged in sex within 15 hours of her encounter with Kobe. If believed by the jury, they would not find such behavior consistent with that of a true rape victim. That was the beginning of the end.
Though I am not sure what to think of this case, I am concerned about the impact it may have on those who are sexually assaulted by celebrities. I suspect that the media was much more interested in finding out who this woman was because she was accusing Kobe Bryant than they would have been if her accused attacker were not famous. And I think she suffered for it, what with the accidental (or not?) release of her name and thus, the investigation into her sexual history that we usually say is irrelevant in assault cases. Do you think that this case might influence women (or men) who have been assaulted NOT to bring charges?
Jeralyn Merritt: It should not result in other women hesitating to bring legitimate claims of sexual assault. The rape shield law worked in this case. Her prior history would not have come in. Also consider whether a non-nationally known person would have been charged in the first place. I don't think so.
Mitchellville, Md. :
How much credibility does the accuser have in a civil trial now? Isn't it true that the defense will have the opportunity to expose even more embarrassing details about her in a civil trial than they would have in a criminal trial? Won't it seem suspicious that she wasn't willing to suffer the embarrassment in order to send Kobe to jail, but is willing to do so for a large sum of money?
Jeralyn Merritt: I think the accuser's credibility will suffer by her request to dismiss the criminal case. She will be seen as being after the money. However, Kobe has an incentive to settle to restore his reputation, so it will probably never get to a trial.
Until today, I had doubts about Bryant's guilt, and I say that as a woman and as someone who doesn't like Bryant or the Lakers. I was even defending Bryant's lawyers' request to include the woman's sexual encounters in the 72 hours surrounding "the incident," agreeing that it was not a violation of rape shield laws if it was exculpable, which it sure looked to be. Everything I'd read and heard really had me leaning toward suspecting this was, in fact, a consensual encounter between a well-known figure and a flighty, rather promiscuous woman who saw an opportunity after the fact.
And then we get "Although I truly believe the encounter between us was consensual, I recognize now that she did not and does not view this incident the same way I did."
Huh? This is a perception issue? It was ambiguous? I'd have understood if he'd said he was sorry she'd had to go through so much when his fans made her life miserable. That it was unfortunate that the court had made so many errors. Even some bull about coming to realize that being a public figure isn't just about being a ready target but comes with responsibilities to others who might be affected by a seemingly private act. But "understanding that she doesn't "feel" she consented? What?
I'm sure the statement had to be crafted in a particular way as part of the conditions of dropping the charges. But there are some damn pricey lawyers sitting over there at Bryant's table and they could have fought that language. That they didn't says an awful lot to me. It's interesting that as a result of the charges being dropped I have made a 180 and now do believe he's guilty. And he's gotten away with it. Amazing what $12 million in attorney's fees can do, isn't it?
Jeralyn Merritt: Kobe's statement was a legal one. It was not an admission of wrongdoing. It was necessary to get the accuser to ask the DA to drop the charges.
No one in their right mind would go to trial and risk life in prison when they can get the charges dismissed merely by apologizing for what the accuser thought happened even though he doesn't agree it happened that way.
This case belonged in the civil arena from day one.
How critical do you think the performance of the local sheriff's department was in damaging the case from the start, with their end-run to get a search warrant, the "funny" T-shirts?
Jeralyn Merritt: If fault lays anywhere with this case, it is with the Sheriff's department. The Sheriff went behind the DA's back and got an arrest warrant for Kobe within days of the incident. The DA was forced to make a rushed decision to charge with the glare of the spotlight on him. He did so before he had sufficient time to investigate the allegation.
The sheriff's office failed to preserve crucial evidence in Kobe's room. The T-shirt incident shows bias on their part.
They look like Keystone cops.
There have been many comments about the prosecution's
"weak" case and the mistakes made by the prosecution
and court. Given the outcome to date, one might conclude
the that the defense handled the case well.
In your opinion and with the benefit of hindsight, could
the defense have done anything that would have hastened
the dismissal of the charge?
Jeralyn Merritt: The defense in this case was nothing less than outstanding. They left no stone unturned. Law students should be required to study the pleadings and transcripts to learn how to defend a sexual assault charge. This case sets a great example of how to conduct trial preparation and how to provide effective assistance of counsel.
So are you saying that women who are quote unquote promiscuous cannot be victims of rape? I find that absurd. While I feel the prosecution bungled this case, what of the physical evidence, i.e., blood stains and vaginal lacerations that were indicative of non-consensual sex? The defense was intent on demonizing this woman, portraying her as a woman who slept around and had a very active sex life, yet if you look at the physical evidence, the bruising and lacerations, the injuries prove at the very least that this was not consensual.
Jeralyn Merritt: Any woman can be raped. A woman can say "no" at any time, provided she effectively communicates the "no" to her partner. That's not the message of this case.
The defense did not attack her character. They attacked her story. The defense was that Kobe was not the cause of any physical injuries she suffered, but rather, such injuries resulted from repetitive sexual activity over a three day period. Since the prosecutor upped the charge by alleging Kobe caused her injuries, this was not only fair game, but required to allow him to present a defense.
So isn't the lesson from this and other celebrity trials is that if you can pay big money for a defense and listen to them (unlike Martha), you'll walk. A middle-class or poor defendant in Kobe's shoe would be in the slammer for decades -- how is this justice?
Jeralyn Merritt: What would be justice is if we would provide all defendants, including indigent ones, with the quality of counsel and representation that Kobe received.
The dismissal of this case will surely rekindle the debate regarding the validity of the various "rape shield laws" within the broader context of the Rules of Evidence (and their theoretical foundations). Simply stated, rape shield laws, though well-intentioned, limit the constitutional right of confrontation that criminal defendants posess under the 6th Amendment. In this particular case, a strong argument can be made that the CO rape shield law would have precluded the introduction fully probative exculpatory evidence. What is your take on the rape shield laws, and what is the proper balance that must be struck, between protecting 6th amendment rights on one hand, and encouraging victims to testify?
Jeralyn Merritt: I am not a fan of rape shield laws. I think rape should be treated like every other crime. If we want to remove the stigma from reporting rape, we should stop perpetuating the myth that it is a crime about sex. It is a crime of violence. If we treated it the same as a stabbing, perhaps the stigma would die.
Falls Church, Va.:
Don't know if this falls into your sphere of expertise, but I thought I'd ask -- what does Bryant do now to repair his image and reputation? He's lost millions in endorsements, both current and future ones. Is there a way to rehab his image?
Jeralyn Merritt: I think the best way for him to restore his image is for him to settle the civil case quick and go back to playing ball. Endorsements may come in time, but if not, so what? Didn't he just sign a $136 million contract? If he invests wisely and watches his spending, he should be set for life.
Obviously, none of us know what really happened, but whatever it was, it wasn't what presumably rape laws were originally meant to get at -- the stereotypical rapist jumping out of the bushes and holding a knife at the victim's throat. Do you think many "date rape" cases like this call for some other category of crime where the punishment would not be so severe (possible life in prison), so that juries might be more willing to convict?
Jeralyn Merritt: I do think that date rape cases should have a lesser penalty. I also think that rape shield laws can prevent a defendant from getting a fair trial in such cases. On the other hand, everyone can say no to sex no matter how many times they have said yes before. It's a balance. But the defendant's right to a fair trial and to present a defense must be paramount.
Don't you think that Kobe's response to the media was a little strange? I mean if you did not rape this young lady then why would you say that you understand how she may have thought that she was being raped?
Jeralyn Merritt: His response was a compromise arrived at by lawyers. Her lawyers wanted him to admit fault. He couldn't do that, so they compromised that he thought she consented, but she thought it was rape. It's a legal nicety.
Please explain, I don't know what this means.
Jeralyn Merritt: the defense alleged that the Sheriff's office had ordered T-shirts depicting a hanging that were racist and implied a lynching.
You say "I do think that date rape cases should have a lesser penalty."
Why? Just because an attacker knows his victim, he should not face the same penalties as someone who "jumps out of the bushes"?
Jeralyn Merritt: I think that Colorado's rape penalties, which require a maximum sentence of life in prison, subject to a determination by a sex offender board, are too harsh. Sentences should be based on a case by case basis, according to the history of the offender and nature of the crime. The degree of violence and force used should be the key factor, and in stranger rape cases, the likelihood is that greater force and violence will be used.
I'll admit to not following every step in this trial, but I do remember having the sense that the judge seemed to lose control over the proceedings fairly early on. Was this the case or did the prosecution fumble? Or did Bryant's team simply do their jobs better?
Jeralyn Merritt: I don't think that either judge lost control. When the Judge bound the case over for trial, he did so reluctantly, saying it was close call, even using a very low standard of proof as is required at that stage. This was never a strong case. It was always a he-said/she-said that depended on the credibility of the accuser.
Do you think there is a possibility that she did not anticipate that this would have been a criminal case? That she would have thought it would have stayed in the civil arena, or did she really anticipate that this would be a criminal issue with the possibility of life in prison for him?
Jeralyn Merritt: She may not have known the penalty at the beginning, but she clearly called the Sheriff's office to report a crime. She wanted criminal charges brought against him. She could have asked them not to file the case in the beginning and pursued her civil options. She didn't.
"Sentences should be based on a case-by-case basis, according to the history of the offender and nature of the crime. The degree of violence and force used should be the key factor, and in stranger rape cases, the likelihood is that greater force and violence will be used."
But if it on a case-by-case basis, then it's really not correct to say the "date rape" should face a lesser sentence. Your wording implies, which I think is not your intent, that date rape is a lesser crime by virtue of the fact that the perpetrator and victim may know each other.
Jeralyn Merritt: You are correct. I do not mean to imply that date rape is always a lesser crime. The facts of each case need to be judged individually. Generally, intent is more of an issue with date rape than stranger rape.
Jeralyn Merritt: Thanks to all for participating. I hope that the Kobe Bryant case has heightened everyone's awareness of the sexual assault laws, their severity, and the difficulties that can arise in trying to prove such charges. Good luck to both Kobe and the young woman, may they both get on with their lives and put this behind them.