For 14 months we speculated and theorized, we supposed and presumed, we read into pieces of evidence real and imagined, along the way trampling the fundamental underpinnings of our legal system: innocent until proven guilty. With 20-20 hindsight, we know that the case accusing Kobe Bryant of sexual assault never should have gotten so close to trial. From the time Eagle County, Colo., judge Frederick Gannett ruled in writing last October that there was barely enough evidence to move the case forward, it was apparent that there would be no case, that this was a bigger melodrama than it should have been
There's a reason all those NBA teams pursued Bryant during free agency, with what at the time seemed like a stunning disregard for the possibility he might wind up in jail. They were convinced that the case against Bryant wasn't going to hold up, that it wouldn't reach trial or that Bryant would be acquitted.
As far back as 10 weeks ago, during a luncheon on a Saturday afternoon in D.C., the topic among a half-dozen sportswriters and one lawyer was Kobe Bryant and what would happen to him. The lawyer was my friend David Cornwell, who grew up here in D.C., went to Sidwell Friends, then Tufts, then Georgetown Law and has been an assistant counsel for the NFL. He has worked on behalf of athletes and agents, and now is president of his own company in southern California. He has handled some serious cases. He helped craft the language in the NFL's collective bargaining agreement that, as it turns out, allows the NFL to say "not yet" to underclassmen such as Maurice Clarett and make it stick. So that afternoon sitting in the sun on Wisconsin Avenue, Cornwell got our attention when he said: "It would be prosecutorial misconduct for this to go forward. It'll never make it to trial."
At the time it seemed a rather radical position, even though the prosecution appeared to be foundering. It wasn't a prediction; Cornwell was assessing the case point by point in a way the district attorney, Mark Hurlbert, should have done. Either Hurlbert never did that, or he miscalculated in a way that would suggest incredible incompetence, given Wednesday's outcome.
Either way, a case that Gannett already described as weak soon continued to lose steam. The ruling on DNA evidence went against the prosecution. The accuser, who wants us to believe she is too distraught to testify in a criminal case, undermined the state's case by filing a civil suit. (Cornwell's bet is there will be no civil suit, that the accuser is now the one who has settled). Whatever you think of Bryant and his admission of adultery, the star witness certainly would have had trouble establishing her own credibility in a criminal trial.
Then the prosecution was faced with a startling number of prospective jurors who checked "definitely innocent" or "probably innocent" on the questionnaires that went out to local residents, so many, Cornwell said yesterday, "that the prosecution had to go back to the judge and ask him to use his own discretion to dismiss prospective jurors or increase the number of challenges" available to the prosecution.
Please, don't let me hear that the purity of the process has somehow been upset because Bryant could afford the best legal counsel. This is the process. As Cornwell pointed out to me, cases are settled during jury selection or on the eve of trial or on the courthouse steps every single day in America.
And often, for an accused person to gain freedom, he or she must meet a condition. As to Bryant's "apology," it's something he had to do. Here apparently were the choices: have unconditional freedom after an "apology" or go before a jury decidedly not of your peers and let them hold your life in their hands. Right. You can choose to read into Bryant's "apology" but I'm not about to waste my time. It was a no-brainer once offered by the prosecution, no matter how it might look from a public relations standpoint.
As it turned out, Hurlbert had, as Cornwell suggests, "numerous opportunities to question the strength of his case and either didn't or continually came up with the wrong answer."
It's not like Cornwell is alone in his assessment. In yesterday's editions of the Denver Post, David Fogel, a former federal prosecutor, is quoted as saying, "I wouldn't have brought a case here." In the same piece, Christopher Mueller, a professor of law at the University of Colorado at Boulder, said: "I can't look at these facts and see a way to win. It would have been very hard to convince a jury regardless of who the defendant was."
It's certainly fair to wonder now whether Hurlbert had an agenda. That because he's up for election and perhaps wanted to show he could be tough on crime, or whether his own biases got the better of him. Any way you slice it, we won't have Hurlbert to kick around any more. His stunning and public failure, one that comes at great expense to the taxpayers of Colorado, will ensure that.
And perhaps it will also ensure that the next such case won't be pursued for political or personal gain or because the accused would make a nice trophy, but because the preponderance of evidence actually suggests guilt.