Episode 253: The Kobe Beef, Part 2 (Kobe Bryant Sexual Assault Case)

 

Jessa: I am Jessa.

 

Nick: I’m Nick.

 

Jessa: And we’re back.

 

Nick: We’re back. We’re always back. Today, we are back to continue our examination, our analysis of, well. Is this the right way to refer to it? Is the morally, ethically, legally, correct way to refer to this, ‘the Kobe Bryant’?

 

Jessa: That’s how I would say it because it was, in fact, a case. It wasn’t adjudicated by a jury. There was no trial. It was dismissed prior to trial. But it was a case that was charged.

 

Nick: He was a defendant. And, I mean. I suppose one can have different perspectives on this, but I can tell you that the way prosecutors are trained these days is to make the focus of prosecutions, certainly sensitive crime prosecutions, offender-centric. To focus on the defendant and their behaviour, which, it’s hard for me to disagree with that.

 

Jessa: It’s hard for anyone to disagree with that because that’s who’s on trial.

 

Nick: Right. It is, that is the person whose behaviour is alleged to be criminal.

 

Jessa: Righto. Like, that’s really not hard to me. I don’t think that’s remotely controversial.

 

Nick: So from that perspective, that is, consistent with that, would be referring to this as the Kobe Bryant rape case, as you said. It was a case. He was the defendant. That was the charge.

 

Jessa: Right. Okay. So as we started last time, I want to start this time. We are talking about really detailed information relating to allegations of forcible sexual assault. If that’s a thing that is going to be hard to listen to for you for whatever reason, I would recommend maybe not so much participating in these episodes. I think the first one that we did last week probably touched the most on the facts, but we’re about to talk about some pretty uncomfortable things that were done to this woman by people. Okay.

 

Nick: Indeed. So last episode was probably, as you said, the one that will wind up being the most fact specific in terms of each side’s account or, at least, initial account of what happened. And that was intense.

 

Jessa: Yeah.

 

Nick: Objectively. It’s difficult to read both of those accounts for different reasons, his and hers. But yeah, moving forward, we’re gonna talk a lot of hardcore law stuff, but we’re also going to talk, even some of the hardcore law stuff deals with positions or arguments or assertions that may well be upsetting to a lot of people. Let’s talk briefly why. This happened in 2003 and 2004. The criminal world, the criminal law world, at least concerning these types of cases, was a significantly, well, I hope this is true. I believe this is true. A significantly different place than now. I’m not saying it’s 100% different. I’m not saying everything’s perfect now. But the law was different in some regards. The law has changed since then, in part because of this case. Notions that still flew around the world through the media and elsewhere, I think happened in a way that, I think it would have been treated significantly differently if it happened last week than it did in 2003. I hope that’s true. I believe that’s true. I hope I’m not naive in saying that. But a lot of unpleasant difficult things happened in this case. We’re going to be talking about those. So those could be, I think, hard for people to hear about. And so if those are things that may have a really hard effect on you, as Jessa said, consider rejoining us a couple episodes down the road.

 

Jessa: Right. My second housekeeping thing is we did two episodes, specifically on the history of rape shield legislation and litigation and the contents of the rape shield motion that was filed by the defence in this case. Those are both up on Patreon. We are at patreon.com/gettingoffpod. For one dollar, you get access to those and every other quote-unquote “true crime biggie episode” we do from month to month. If you want, like, some deeper analysis of this particular pretrial issue, check those out. We’ll probably repeat ourselves a little bit. But we’re gonna try and not make that, we’re hoping that we’re doing this differently.

 

Nick: Indeed. We did it in a lot of detail, a lot of really specific analysis, and I’ve said this before, but I am going to say it again. If you are interested in hearing some very detailed, intense, legal analysis of one particular legal issue, that here is rape shiled law and jurisprudence from a person who is straight up just one of the leading experts, period, on that topic, go to Patreon. Because that is Jessa on this topic, as well as others, but in particular, this topic. So you’re getting a level of insight and analysis, really very few other humans are able to offer, through Jessa’s analysis of rape shield, the laws and the history surrounding rape shield. That’s just a fact. So if you want that, go to Patreon.

 

Jessa: And I’m going to shift uncomfortably under the weight of your compliment and move on.

 

NIck: Okay. We left off in our last episode at the point in the Kobe Bryant rape case where he’d been formally charged. That happened a little more than two weeks after the incident took place..

 

Jessa: And the interviews that we talked about last time. And before we go into pretrial stuff, I do want to say I tried to keep my commentary on the initial statements to minimum last time because I wanted people to just hear those, sort of as they came out. I want to flag a few things that are just my opinion and my analysis. Number one: if anyone thinks that this story is a He-Said-She-Said case, quote-unquote, I would challenge that belief. And here’s why. When I think of a He-Said-She-Said, quote-unquote, assault, I think of a delay report case where there’s no forensic evidence. There’s no scientific evidence. There’s no eyewitness testimony. There’s no medical testimony. It’s just about what version a complainant offers and what version a defendant may choose to offer, or remain silent about. It’s about the credibility of that witness, okay? The credibility of the complainant. This is not that to me, despite the fact that this, like many other sexual assaults, occur in private, for the following reasons. Number one: there were corroborating eyewitnesses for her. At least one because her friend saw her disheveled, distraught, and with blood on her. And she disclosed immediately, so number two: there’s not a delayed report here. She is contemporaneously reacting and reporting this. That’s relevant to me, okay? Now that’s not to say that delayed reports sexual assaults are false. Like, obviously that’s not what I’m saying. But the immediacy of the report..

 

Nick: Allows for the possibility, and in this case, the reality of evidence that is not possible in cases involving delayed reports.

 

Jessa: Right. We also know that there was a sexual assault nurse exam, or a SANE exam, and that there were findings that documented a bruise on her neck and and also vaginal tearing, and we’ll talk more about that when we get to prelim. So there was medical evidence here that lended itself to the conclusion that there was certainly sexual activity, at least from the state side evidence of sexual assault and, again, we’ll get to that. Alright. So that’s what I would say is, I don’t think it’s fair to classify this as a He-Said-She-Said, okay?

 

Nick: Right. And I mean, I don’t know if there is a definition of that phrase. Like a consensus definition. I mean, one way you could define it, it would encompass almost, the majority of sexual assault cases, which is just that if there is nobody else present during the period of time that is in dispute.

 

Jessa: Well, and to me, I would call those consent-defence cases when we’re talking about two alternative versions of events, one being non-consensual, the other being consensual.

 

Nick: Sure. So what we’re talking about is whether or not there is additional physical evidence or corroborating evidence or what have you, available or not. And look. Experts can testify, and I really don’t think these topics are in dispute, that not immediately reporting is extremely common. In fact, if we combined delayed reports with people with cases where people never report at all, we’re probably perhaps talking about the majority of cases, given the numbers that we believe to be true of the frequency with which sexual assault is reported at all. So there’s, I’m not saying anything about that other than that. In this case, there was, essentially, an immediate report. And there was a report to her colleague, there in the lodge and spa, basically, on the spot.

 

Jessa: To her mother, within 12 hours of the alleged assault, and then to police, again, the morning after.

 

Nick: Right. The next day. So that is, essentially, an immediate report and that allowed for the possibility of other types of, of the collection of other types of evidence of all sorts. So.

 

Jessa: That’s one thing.

 

Nick: Yes.

 

Jessa: Now that’s kind of in the camp of this accuser, right? Okay? I also have some things to say in Kobe’s camp, which is some people might react to the fact that he initially denied the sexual contact with this person and then later says “Yeah, okay, we did have sex, but it was consensual.” If you read the whole transcript, it is very apparent from context, to me at least, that the reason he’s unwilling to discuss this is because he’s afraid his wife is gonna find out. And while I’m not saying that it’s ever okay to lie to police, I do think that there was a viable alternative motive to lie about the sexual intercourse, independent of having been guilty of sexual assault. So to the extent that that clouds his credibility with police, I don’t weigh that particularly heavily because I think there’s a pretty understable motive to lie about cheating on your wife.

 

Nick: And he articulated that motive..

 

Jessa: Very quickly.

 

Nick: Repeatedly during his interview and the minute the police assured him that they wouldn’t be informing his wife, he changed his story. So look. Would a prosecutor, if Kobe Bryant, well. Would a prosecutor make use of the fact that he initially denied having sex at all? Of course a prosecutor would. But I agree with you that that is probably less powerful or meaningful in this particular instance than it would be in others.

 

Jessa: There are other things in his statement that I think, frankly, don’t paint him in a very flattering light. Like, he doesn’t really know her name. He essentially he stopped having sex with her because she wasn’t down to get a facial, which, like, that’s not cute.

 

Nick: He thought she was cool, or something to that effect, which apparently..

 

Jessa: And by cool, means “I’ll let you cum on my face”.

 

Nick: So that’s what he believed to be true. Not sure what the basis for that was, but then when he realized she wasn’t cool, he was just, like, “Well, we’re done.”

 

Jessa: He affirmatively interrupts police to say he didn’t find her that attractive. That’s not a particularly charming look. He also, by his own statement, says that she asked for an autograph that he then denied her because sometimes he feels like doing that shit, and sometimes he doesn’t. All of that paints him as a pretty entitled brat. Okay?

 

Nick: Yeah.

 

Jessa: None of which actually tells me much about if he’s guilty of sexual assault.

 

Nick: Those details, agreed.

 

Jessa: Okay? Now, the statements he makes alleging her consent, his statement about not seeking affirmative consent, that she never really said yes, and then he sort of waivers on that and says “I hoped you’d fuck me.” The way that he sort of paints her as a seductress coming onto him when she’s a 19 year old girl and he’s an NBA star. That all sort of smacks of what nowadays we call DARVO stuff. Deny, attack, reverse victim offender. That’s the abbreviation. That, I think is a little different, but some of this, you can both think somebody’s kind of a cad and also not conclude that they committed sexual assault. You can also be a cad that committed sexual assault.

 

Nick: Right. And I would use stronger language than “cad”. I mean, he does not paint himself in..

 

Jessa: No. He’s a fucking asshole.

 

Nick: I mean, he paints himself in a really ugly light during this interview. Like, really ugly. And no lawyer would ever want a client to have agreed to this interview, or to have said most of what he says here because, while it is absolutely true that clients, defendants can be depicted in ways that are really unflattering at a trial, and still be not guilty of a crime, it doesn’t exactly help if the defendant is just straight up unlikeable.

 

Jessa: Like, and it’s also, like, if you don’t know her name and you wouldn’t give her an autograph, it’s hard to believe that, like, alright. Anyway. So this is what we know about them early on. We learn a lot of things through the press between July when he’s arrested and the preliminary hearing, which is in October of ‘03. We learn some things through the press that, maybe, people already knew about him. Also, you know, like, AKA his success as a basketball player. His fairly unparalleled talent as an athlete. I mean. You can speak more to this than I can because I don’t follow sports, but I think he was, maybe, the youngest player to get drafted to the NBA?

 

Nick: Yeah, he was the youngest, I think when he played his first game, he was the youngest player at that point, ever to have played an NBA game or something. He was 18 years and 2 months when he, you know, played his first game in the NBA. He was actually 17 when he was drafted. He was an enormous star in Pennsylvania in high school. Went straight, obviously, from high school to the pros, and won the NBA Dunk contest as a rookie. And I believe in his second year, made the All-Star team, for the first time. I think he was the youngest person to star in an All-Star game. And that his career then went on to win, I can’t remember, five NBA championships or something like that. Played the Lakers for 20 years or whatever. Was an NBA All-Star something, like, 18 times. Was an MVP once. He had a remarkably distinguished career as a professional basketball player, to the extent that you care about that.

 

Jessa: And you may be asking yourself why did they just spend time telling us about this guy’s athletic record because that doesn’t help us determine if he committed sexual assault or not. And you are right. However, the American news media and, in fact, the international news media, because the population of this town doubled due to the amount of press that showed up for every hearing. The media felt the need to tell us about his athletic history over and over and over again. And while they’re telling us about what a talented guy he is, what are they telling us about this woman?

 

Nick: Well. Let’s talk about a handful of different things. Let’s talk about what wound up coming out over time and whether or not it was supposed to, like, from a legal perspective. Now is an okay time to start talking about this notion of rape shield. What is rape shield? Rape shield laws are statutes, laws passed in jurisdictions, that shield, in theory, other sexual experiences of a complainant from admissibility at trial. You know. And that is true, but a question that came up in this case is, “Well, wait. When does rape shield protection begin?” You know. When is that invoked? Is it right away? Is it only at trial? Does it cover the whole case or not? So that’s a thing. And also in Colorado at the time, their law was that rape shield motions were, when they were filed, were supposed to be sealed. That is to say, not publicly accessible. And hearings on those motions were also supposed to be closed from the public. And so the idea there would be that these details, these alleged details about prior past sexual experiences of the complainant would not become public unless they were deemed to be admissible by the judge. As you went through the process of making that determination, they would be kept from public scrutiny until they were determined to be admissible, which, you know. There was a lot of analysis and criticism of Colorado’s rape shield laws and rape shield laws, in general, in the wake of this case. That aspect of Colorado’s law is, I think actually, pretty admirable.

 

Jessa: Well, I mean, today, in 2020, we don’t close rape shield hearings in Wisconsin.

 

Nick: No. So that was a protection 17 years ago in Colorado that Wisconsin does not have today. So in that one way, the Colorado law offered a type of protection that is not offered everywhere in this category. Okay.

 

Jessa: Right. But I was talking about even outside of her sexual history. The press figures out who she is pretty quickly. Now, the criminal complaint listed her initials, so far as we can tell. Her name is redacted, but it appears to be quite short, the redacted portion, so we think it’s initials. They find out her identity and they find out a lot about her. They find out, and it’s reported widely, that she was borderline obsessed with her ex-boyfriend, that she was a fame-seeking girl who had auditioned for American Idol. Cause, you know, that is relevant to anything at all. That she had attempted suicide twice as a teenager. Cool. Great. So happy that those moments are public for everyone. That she, in fact, had been hospitalized due to mental health concerns. And then, after the prelim, we really, well. After the prelim.

 

Nick: No. No. Well, yeah. Okay. So let’s..

 

Jessa: At the prelim, we get into the sexual history. But so, like, all of this is, you know. The rumor mill is working. The talk shows are trying to find her high school Spanish partner to find out who she is and what they can say about her. It’s gross. It’s tragedy porn of the highest order.

 

Nick: The media attention and the public attention actually start even before Kobe is formally charged. The media figures out the identity of this young woman, I think, on July 9th and they’re camped out outside her parents’ house. Her father actually winds up confirming that she is the complainant, and off we go. The police wind up having to come back and disperse crowds that are showing up outside her home. Over the course of this case, more than one person was prosecuted for making threats against her and others on this, sort of, prosecution side of the case. So it was awful. The litigation, the pretrial litigation begins before the preliminary hearing. The defence does a couple of things that are, it is accurate to say, unusual. Uncommon. Before we even get to a preliminary hearing, and we’ll talk more about what a preliminary hearing is again in a minute. But we’ve talked about it before. Here’s one thing they do. They subpoena the complainant’s mental health records from two medical facilities, related medical facilities, in Colorado. And how they would have gleaned all of that information, we’re talking about five weeks after the complaint was filed. That is uncommon.

 

Jessa: Yeah.

 

Nick: So they did that. Access to that level of detail of information is unusual. Subpoenaing them is unusual, at least..

 

Jessa: At that phase.

 

Nick: Yes. And well, I mean, really, at all. Going about it in that manner. And what happened after they issued those subpoenas is unusual. The two medical facilities actually, according to their own response to the subpoenas, a record’s custodian contacted the judge and said “Are we really supposed to send these to you?” And the judge said “Yes. Send them just to me.” The medical facility did that, only later realizing that that is…

 

Jessa: A problem!

 

Nick: A massive HIPAA violation. Right? All of our medical records of why, and that’s defined pretty broadly, are confidential. We do not have to share those with other people. And they are not to be shared absent..

 

Jessa: A showing of good cause.

 

Nick: Well, but the first thing is, they’re not to be released unless we say we consent to that.

 

Jessa: Yes. Right.

 

Nick: In criminal cases, over time, a body of law has developed that says, as Jessa says, in certain cases, and really, pretty limited circumstances, the defendant may be entitled to have access to those records. But there have to be really good reasons for that. Okay? Just trust us on that.

 

Jessa: And it would be pretty hard to make an argument that those reasons exist pre preliminary hearing because you know so little about the case, as a defence attorney.

 

Nick: Indeed. So a whole bunch of this is remarkable. The most remarkable, to me, is that this medical facility actually just up and mailed psychiatric records to a judge.

 

Jessa: Oh my god.

 

Nick: And the judge got them and held onto them. And when the medical facility, when their lawyers realized this, they belatedly filed a motion seeking to quash this subpoenas for these records, even though, gee, I don’t know, the records have already been sent out. So the judge sits on these records and that becomes a, you know, a subject of a significant amount of litigation. But this begins well in advance of the preliminary hearing. What else happens? The defence team subpoenas the complainant. This young woman. Subpoenas her to testify at the preliminary hearing. That is then, that is the subject of a lot of litigation. That’s pretty aggressive. And we’ll talk about what preliminary hearings are all about. So not surprisingly, the state, Colorado, the DA, kicks back against that, objects to that, seeks to quash this subpoena for the complainant’s testimony at the preliminary hearing stage. Alright. This leads to the judge issuing a 15-page set of orders in advance of the preliminary hearing, where he issues sort of tentative rulings, although some aren’t rulings. They sort of just say, “Alright. We’re gonna table this and take it up later about all of this stuff”. So the issue of the medical records is largely tabled, pending the prelim for the reasons you just suggested. How can the judge even have the foggiest idea of whether these records are even, hypothetically, important?

 

Jessa: Nobody knows.

 

Nick: Nobody knows. The motion to quash the complainant’s subpoena is granted. She is not to testify at the preliminary hearing, but I mean, like.

 

Jessa: This is a ton of litigation, pre prelim.

 

Nick: I mean, a 15-page written decision about what is going to happen at the prelim before the, like. This is really unheard of.

 

Jessa: Yeah. So. And also, the law machine was operating in sort of one lane, the PR machine was operating in another lane. And Kobe’s people were holding press conferences very regularly. The prosecutors, after the fact, acknowledged that they were totally outmanned and outgunned by way of working with the press. And the narrative was “I am 100% innocent. I’m guilty of adultery and nothing else.” 

 

Nick: Exactly. And that’s the story that Kobe comes out with, publicly, pretty quickly after he’s been charged. There’s also all sorts of people who are affiliated with him or associated with him, speaking well of him, in the media.

 

Jessa: His coach said “These allegations are totally out of character”. 

 

Nick: Exactly. All that kind of stuff.

 

Jessa: So. Gearing up for prelim in October of 2003. Why don’t you do a very brief primer on what happens at a prelim? I know we’ve talked about this before.

 

Nick: Right. Okay. So here’s what. It is apparent that the rules and the procedures for this type of hearing are not identical everywhere that has this type of hearing, this thing called a preliminary hearing. But what, fundamentally, is the legal purpose of a prelim, as they’re referred to? It is to allow for a judge, a member of the judicial branch of government, to make a determination about whether or not the executive branch of government, that is to say, police and prosecutors, do or do not have probable cause to charge a person with a felony. Right? It fulfills, basically, the same procedural function as a grand jury. Right? The idea is just that there is some check on the executive branch by some entity outside of the executive branch on whether or not they have enough evidence to proceed. Now, probable cause is a phrase that doesn’t always mean the same thing in different settings and at the preliminary hearing stage, at least here, it’s a really low burden. It is, despite the fact that the purpose of a prelim and the laws about a prelim at Colorado at the time and here in Wisconsin today, appear to be similar. It is apparent that, in reality, they were not the same because they did, they put on a significant amount of information. I won’t call all of it evidence because there are things that are allowed at prelims like hearsay that wouldn’t be admissible everywhere. So we can talk about whether or not, is that evidence? Well, in this context, it is.

 

Jessa: It is for this hearing.

 

Nick: Yes. This prelim lasted two days.

 

Jessa: Yeah.

 

Nick: Prelims in Wisconsin sometimes take ten minutes. I mean. That’s, you know, a really bad instance. But that happens. In Wisconsin, really, these days, all that needs to happen is that some witness needs to testify that some human being alleged that the defendant in question, they have to be identified, did something, which if it’s true, would constitute a felony and that that happened in this jurisdiction.

 

Jessa: Right.

 

Nick: And that’s it. A lot more than that happened at this preliminary hearing.

 

Jessa: Alright. And so I do want to flag for you everything you’ve learned about these two people, you didn’t learn it from the lawyers. As of right now, okay? Everything you heard, you heard from PR, you heard from friends, you heard from reporting, the media, the press. The lawyers have not told this story yet.

 

Nick: Right.

 

Jessa: Okay?

 

Nick: Yes.

 

Jessa: And I make that distinction because we’re about to get into the press and the lawyers and how the lawyer, the defence attorney in particular, in my view, is blamed for things that I think really should be the problem of the press. But. Okay. At the prelim, testimony starts to happen and a police officer is on the witness stand. Okay?

 

Nick: Indeed.

 

Jessa: Testifying about the results of her sexual assault nurse’s examination. I’m gonna flag for you that this is not the medical professional that performed this exam, okay? So this is some guy who is not a doctor, who isn’t trained in this, reporting the conclusions. And in so doing, he says “The injuries to her vaginal wall..”

 

Nick: Yeah, let’s read it. 

 

Jessa: Do it.

 

Nick: I’ve got the transcript of the preliminary hearing queued up to just this part. So this was the first witness in the preliminary hearing called by the state, of course. He was a detective named Doug Winters, with the Eagle County Sheriff’s Office. He’d been an investigating detective for that agency for about four and a half years, he said. A variety of things happened here. Let’s talk about the one you raised first. I’m just gonna read this. Pamela Mackey is the lead attorney for Kobe Bryant. She is cross-examining this detective at this point in the prelim. They’re talking about the results of the complainant’s SANE exam and photographs and the like that were taken there. She says, Pamela Mackey asks:

 

Question: You don’t see an open wound of any kind, right?

Answer from the detective: It doesn’t, yeah. It doesn’t appear to be open.

Question: And you don’t really have any independent knowledge of what those pictures show, correct?

Answer: I don’t understand the question.

Question: Well. You can only tell the judge what the nurse told you about what those pictures show, correct?

Answer: Well, based on what the nurse said, going over the photo log and it describing what it is, I have a good idea what it is and where it’s located at.

Question: But a key component of that is what the nurse told you, correct?

Answer: That’s a part of it, yes.

Question: Well, I think we’ve established you don’t have a very good grounding in female genitalia. Is that correct?

Answer: That’s correct. I never really studied female genitalia as far as..

The court interjects and says “It’s not intended to be funny, so let’s..

Question by attorney Mackey: So the nurse had to show you. The nurse had to explain to you where the posterior fourchette was, correct?

That’s correct.

And she had to indicate that those pictures were of the posterior fourchette, correct?

 

He agrees with that. Give me a moment to get to turn to the next page.

 

Question: She also opined that those pictures were, and I want to get to the exact language here, so we’re consistent. I’m sorry. Let me find it. I think what you testified to on direct was that what you see there is consistent with, quote “penetrating genital trauma”, correct?

Answer: That is correct.

Question: You don’t have any expertise to make that conclusion, correct?

Answer: That’s correct.

Question: You have to rely on what the nurse told you.

Answer: Correct. They’re trained in that.

Question: And she told you that it was consistent with penetrating genital trauma, correct?

Answer: That’s correct.

Question: And she told that it was not consistent with consensual sex, right?

Answer: She stated that these types of injuries, you wouldn’t see in consensual type encounters. That’s correct.

Question: And she said that the injuries were recent, but she couldn’t tell you how recent.

Answer: That’s correct.

Now, when you rely on that opinion that it was consistent with penetrating genital trauma, did you ask her

 

Give me a moment to turn to the next page. This is quite a long transcript for a preliminary hearing.

 

Did you ask her if it was also consistent with a person who had had sex with three different men in three days?

Prosecutor immediately: Judge, objection.

 

Jessa: Right. And so, this is bedlam. Okay. Now, and the way that this was reported was, ‘Defence attorney smears victim by introducing her sexual history’. I have a huge objection to that reporting, and I’m gonna go off on that for a brief minute. That question was asked in direct response to the statement that these injuries could not have been caused from consensual sex with this defendant. So the response was, and by the way, the defence had a good faith basis to ask this question. Okay? They had reason to believe that that was true, that she had had sex with three men within a 72 hour period.

 

Nick: They had an argument, yeah.

 

Jessa: They had reason to believe that, and we’ll talk about that later. But. And so the question was, well, “Alright. What about if she had sex with multiple people? Could that affect the degree of injury or wear and tear that we see?” That is actually one of the direct statutory exceptions to rape shield law in almost every state in this country, is whether a not an injury is caused by a particular person or the source or origin of DNA. Okay? So what happens is, she asks that question because she wants to introduce the idea that that might not be the whole picture, that this five to ten minute sexual encounter that has been described may not explain the condition in totality of this woman’s genitals at the time of her exam, a couple of days later.

 

Nick: That’s right.

 

Jessa: Okay. That’s why she asks it. I don’t think that, now the practical effect was, because America sucks, everybody decided that this somehow made this woman a slut, which, fuck you. Like, who are you to say who somebody’s supposed to be sleeping with or how many men someone can sleep with or how they react to trauma or fucking anything? Fuck you, fuck you, fuck you, okay? Media. But that’s not what the defence attorney said. The defence attorney introduced facts that she had a good faith basis to introduce.

 

Nick: She actually didn’t even introduce it.

 

*crosstalk*

 

Nick: She asked a, really a hypothetical question, as it’s phrased. “Could that, also, explain it?”

 

Jessa: Now that may be a distasteful question, and I understand why. But this was not the defence attorney “You’re a ho.” okay? And that’s how it was reported, and I object to that because, out of everybody who made this young woman look like a slut, quote-unquote, and again, I reject that premise. But that’s what happened. For everybody that did that, the defence attorney is the only person in the group who has a constitutional obligation to zealously defend Kobe Bryant. The media doesn’t have the obligation to take his side. You know. Like, her friends don’t have the obligation to take his side. The police don’t have an obligation to take his side. Nobody, except the fucking defence attorney, has an obligation to raise their hand and speak up on his behalf.

 

Nick: Now. That is true, as a general proposition. What is somewhat mysterious to me, now, even after having read some of these motions..

 

Jessa: Is how she knew that?

 

Nick: Well. Yes, in part. But also why, in Colorado at the time, is any of this relevant at a preliminary hearing? Because all, again, all the state has to do is establish probable cause. The judge has a lot of discretion about, has the ability actually to end a preliminary hearing once the judge decides that probable cause has been established. Now, Colorado’s laws are a little bit different than ours, in that there is case law talking about, “Well, depending on how much hearsay the state is relying on to establish probable cause, that may give the defence more leeway in terms of, you know, a cross-examination and the like”. But I don’t know why that testimony was necessary for the state at this stage.

 

Jessa: Well, right. Cause you and I think it all goes to credibility, which is not a prelim issue. But, as Nick just said, that question was wildly objected to. There was actually a recess. The judge issued a written decision about whether or not that question could be asked and determined, yes, it can be. Now, the sort of coda to that is, we don’t know the contents of that decision because that decision was sealed. But he may have concluded that solely because rape shield didn’t apply to prelims at the time. Or he may have concluded it because it was a relevant and valid exception.

 

Nick: That’s right.

 

Jessa: Like, we don’t know and I don’t think it’s fair to speculate.

 

Nick: But the fact of the matter is, since this case, the law in Colorado has changed and now it is explicit that rape shield laws do apply in the preliminary hearing context, at that stage of the case.

 

Jessa: There’s, a, yeah.

 

Nick: That, I mean, that shouldn’t be a hard decision to make.

 

Jessa: Well, no, cause, like, hearsay is allowed prelims. Why is.. 

 

Nick: Also, the entire, the public policy behind such statutes is defeated if it doesn’t apply throughout the proceedings.

 

Jessa: Totally. Cause, like, you can’t just open that door, right. The other thing that the defence attorney got a lot of public critique for, especially post hoc here, is that she referred to the accuser by her name. By her full name. And the suggestion was she uses the name six times, that was intentional, she was outing her publicly. I also object to that conclusion because if you read the actual prelim transcript, she uses the name the first time, which I would note, is the common and acceptable mode of decorum for questioning a witness. I would always, if you were on the stand, I would always address you as Mr Gansner. Okay? That’s how you always do it with witnesses. You don’t call them by their first name unless they’re a kid, usually.

 

Nick: Right. That is the default. Why? Well, because that’s just sort of common good manners, and courtrooms are somewhat formal places, where a measure of decorum, as you say, is expected. So there’s nothing inherently odd about that. Now, that’s not the way the prosecutor had been referencing this young woman.

 

Jessa: He was using the initial. Like, Ms X.

 

Nick: Right. Either her first name, last name initials or just her last initial. When she first uses this young woman’s name, the prosecutor does object.

 

Jessa: Yep. And while there’s no clear rule that the defence attorney is in violation of, everybody agrees that it’s appropriate for her not to use the name. And she is quite candid with the court, and says “This is gonna be a difficult task for me because I’m auto-pilot programmed”. I’m paraphrasing. I’m not quoting. But, like, “This is how I do things, so I’ll do my best. I’ll try.”

 

Nick: Right.

 

Jessa: And she does subsequently use the name five more times. The prosecutor, at least, the second time, doesn’t object to the use of it.

 

Nick: I don’t believe the judge, excuse me. The prosecutor objects again. He objects the first time and I don’t believe he objects again. The judge does interject multiple times. Not every single time, but repeatedly after that.

 

Jessa: Strikes the name from the record.

 

Nick: Indeed.

 

Jessa: And cautions the defence attorney to really try not to do that.

 

Nick: Right. But it, you know. He’s just saying “Please do that. That’s my expectation.” Like, there doesn’t appear to be a statute or a law or a local court rule or anything of the sort. They’re just asking for this, and she is saying in the transcript, “Sorry. I’ll do my best.” And she also says “I’ve never..”

 

Jessa: “I’ve never had to do this this way before.”

 

Nick: That’s right.

 

Jessa: Which I actually think is pretty consistent with what things looked like in 2003.

 

Nick: Right.

 

Jessa: Nowadays, we have all sorts of rules about naming accusers, you know. We don’t publicize that. But that was less developed then. And, you know. The report was, “Oh, this high powered lawyer outs this victim.” And I object to that, and I also would suggest and I won’t wax too poetic on this, but I would suggest that part of the reason that that accusation was so comfortable for the press was that the defence attorney was a woman. And so the idea that a woman, of all people, would do something other than, you know, passionately protect the anonymous nature of this report is inconsistent with our ideas of the sisterhood and shit. And my opinion on that is pretty biased because that’s the sort of critique that I regularly face doing this job. Like, I get accused of being a bad feminist or hating women or being a rape apologist, just for doing my job, my constitutional obligation to my clients, in honor of the oath I took when I was admitted to this bar. But people throw that at me in a way that they don’t throw it at my male counterparts. And I’ve co-chaired cases with men, and seen the press reaction and the public reaction to me versus the man. And I think that that was even more so true in 2003. And I think that the press jumped on the opportunity to call Pam Mackey an opportunistic, cold-blooded cunt. And I don’t think that the transcript reflects that that was actually warranted. I think that that was the least charitable interpretation a person could take of Pam Mackey’s use of that name. And I think the press picked it up and ran with it, and I think that that’s unfair. And that’s my opinion, okay?

 

Nick: I agree. I also believe that the media was far more responsible for the dissemination of what a lot of people would view as sensitive information about this case than the defence team was.

 

Jessa: And I’m gonna tease what we’ll talk about next time, but neither the media nor her friends nor the Kobe Bryant PR machine is really the worst actor when it comes to the violation of this accuser’s privacy, dignity, etc. The worst actor, ultimately, ends up being the court, itself. And we’re gonna talk about that and other pretrial issues that lead to the dismissal. In the meantime, I am Jessa.

 

Nick: I am Nick.

 

Jessa: And this was Getting Off.

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