Los Angeles Times on 06 November 2004

The Case Against Kobe Bryant Unraveled in a Mock Trial

by Jeff Benedict

The Case Against Kobe Bryant Unraveled in a Mock Trial

Eagle, Colo. — Fourteen months after she accused Kobe Bryant of raping her, a young Colorado woman sat on the witness stand testifying about the encounter, answering probing personal questions and trying to explain sketchy details. But the scene did not play out in this tiny mountain community, where the national media already were gathering to cover the trial.

Instead, it occurred in secret, two hours away at the Jefferson County Courthouse in the Denver suburb of Golden, where prosecutors staged a mock trial two days before jury selection was to begin. They wanted to gauge how their chief witness would hold up under hostile cross-examination.

The answer: Disastrously.

For more than three hours, a lawyer playing the role of Bryant defense attorney Pamela Mackey pounded away at the accuser and the account she had given police. The lawyer pointed out that in her police statement the woman said she had kissed Bryant consensually for five minutes before the alleged assault.

"All right, let's start now," the lawyer said, looking at his watch.

For the next 60 seconds the courtroom was silent.

"You're still kissing him," the lawyer broke in, continuing to look at his watch. "You kissed him for four more minutes."

"That's too long," she responded. "We didn't kiss that long."

The lawyer pounced: "Well, you said five minutes."

The woman crumbled, and seven days later so did the criminal case against Bryant, superstar guard of the Los Angeles Lakers and one of the nation's wealthiest and most celebrated sports figures.

The rehearsal left the woman shaken and leery of taking the stand in trial; it was perhaps the most significant event in the case's complex final stages.

"She was literally cut open," said Ingrid Bakke, a prosecutor who was present. "The mock exam was a big turning point for her. There were a lot of issues that went into her decision to withdraw. One of them was that she lost some faith in the prosecution."

The 20-year-old accuser had wavered for months about testifying, overwhelmed by death threats, media scrutiny and repeated court gaffes that revealed her name and explosive sealed testimony.

As her family shifted from a shielding posture to a more aggressive one, she became the subject of a tug-of-war between her private attorneys, who wanted her out of the criminal case, and prosecutors, who pushed to proceed with a trial even as two of them had quit talking to each other.

Cementing the woman's decision to withdraw was an apology from Bryant -- direct, public and painstakingly fashioned in talks so secret that some members of the prosecution and defense were unaware of them. At no time was there a discussion of money, according to sources involved with both the accuser and the defense. The woman has filed a civil suit against Bryant.

In reporting on the collapse of the People vs. Kobe Bean Bryant, the Los Angeles Times conducted dozens of interviews with lawyers and others associated with the accuser and the prosecution. Defense lawyer Mackey said neither she nor anyone at her law firm would comment for this article, citing ethical obligations; defense sources who spoke did so on the condition of anonymity. Through their representatives, Bryant and the accuser declined to be interviewed.

Several sources said the Aug. 25 mock court proceeding was devastating not only because it left the accuser determined to pull out, but also for bringing to the surface the battle for her trust and the feud between prosecutors.

After the woman stepped down from the witness stand that day in Golden, lead prosecutor Dana Easter suggested the defense be notified in writing that she had changed her story about how long she had kissed Bryant. Less than a month earlier, the woman had written a letter admitting she had been dishonest with investigators about two other details.

Bakke openly disagreed, and Lin Wood, an attorney for the accuser, sided with Bakke. "If you file one more letter saying she's changing her story, you'll destroy her as a witness before she ever has a chance to take the stand," Wood said angrily.

Suddenly, a fire alarm rang out, forcing everyone to evacuate the courthouse. Wood said he wanted to talk privately with his bewildered client. But Easter took her to a vehicle and drove away.

Furious with Easter, Wood cornered Bakke outside and said: "She's your witness, but she's my client. I control her."

Wood had wanted the accuser to withdraw since he had joined her legal team in early July.

"I had visions of Kobe Bryant coming out of court waving the victory sign and saying, 'One down, one to go,' " Wood said, referring to the criminal and civil cases. "And this girl would walk away remembered as the young girl who falsely accused Kobe Bryant."

Her other lawyer, former Eagle County prosecutor John Clune, had maintained that she should testify -- until the mock exam convinced him otherwise.

"The three of us knew the plug had to be pulled," Wood said. "The question was: Can we get there?"

The incident occurred June 30, 2003, in Bryant's room at the Lodge & Spa at Cordillera, where the accuser worked at the front desk and the Laker star stayed while having knee surgery nearby.

Shortly afterward, the accuser's parents hired Clune to guide her through the legal system and protect her privacy. A year earlier, Clune was chief deputy in the Eagle County district attorney's office, where he had prosecuted more than 50 acquaintance rape cases during a six-year career.

Clune said that at one point the woman received hundreds of e-mails daily, some containing death threats, others from men asking for dates. The FBI became involved and three men were arrested in separate incidents, two of them eventually going to prison for their threats.

"Thousands of people were trying to contact this girl," Clune said. "Men were threatening to kill and assault her. Tabloids were tracking her every move."

Clune shut down her e-mail account and cellphone and helped her relocate. In the first 11 months after Bryant's arrest, she lived in five states, sometimes moving several times within a state. Even prosecutors weren't allowed to contact her without going through Clune.

Her anonymity was further compromised because of mistakes by court personnel, who inadvertently posted her name on a court website three times.

In the most consequential blunder, a court reporter e-mailed transcripts from a closed hearing in late June dealing with DNA evidence to seven news organizations, including The Times. Judge Terry Ruckriegle tried to keep the material from being published, but the news organizations appealed to the U.S. Supreme Court and Clune realized publication would be only a matter of time.

Clune had spoken periodically with Wood throughout the case, but Wood's confrontational style and penchant for generating headlines cut against the family's wish to remain invisible. When the sealed transcripts were released, however, the accuser's parents reached a breaking point.

Clune made a phone call that would change the course of the case, contacting Wood at a vacation spot in Florida.

"The family has had enough and they're ready to fight back," Clune told him.

Wood had gained national acclaim by securing large financial settlements for Richard Jewell, the security guard named by several news organizations as a suspect in the 1996 Atlanta Olympic bombing case but never charged. Wood also represented John Ramsey, father of JonBenet Ramsey, and former U.S. Rep. Gary Condit.

Sizing up the Bryant accuser's situation, Wood said: "I thought she needed to get the hell out of the case. The criminal justice system was about to throw her under the bus."

Wood and Clune were a legal odd couple:Wood, 52, is a career civil litigator who views the criminal court as an inferior venue and particularly disadvantageous for acquaintance-rape victims; Clune, the 33-year-old former prosecutor, disagrees. Wood likes dealing with the media; Clune loathes it.

But they both knew the imminent publication of the transcripts would be devastating to their client. The closed hearing featured testimony from a defense expert who said DNA results suggested the accuser had sex with someone other than Bryant after the alleged rape and before her medical examination the next day. It would have raised questions about the origin of injuries allegedly caused by Bryant.

Clune had adamantly denied this suggestion when it first surfaced at the October 2003 preliminary hearing. But he and Wood believed the release of the transcripts would trigger a new round of damaging headlines and poison the small Eagle County jury pool.

In a contentious exchange at an open hearing July 19, Clune emphasized to Ruckriegle the harm the transcripts would cause.
"The only time this young woman has considered removing herself from the case was when the people sworn to protect her rights have failed," Clune said. "There is no safety from the court."

In response, chief defense lawyer Hal Haddon told Ruckriegle the comment was "a transparent and truly outrageous attempt to influence the court" -- alluding to the fact that the judge would soon rule on whether the woman's sexual history was admissible.

The next day, Bakke had a long telephone conversation with the accuser and came away believing the woman had decided to continue her cooperation.

"She was trying to make a decision," Bakke said. "I told her the case from start to finish, laying out the strengths and weaknesses."

Soon after, the case became more difficult for prosecutors to prove. Renowned pathologist Michael Baden was dropped as a prosecution witness July 15, and he later told The Times that after examining evidence of the woman's injuries, he could not establish whether her sex with Bryant was consensual. A week later Ruckriegle ruled that the accuser's sexual activity in the 72 hours prior to her medical examination would be admissible.

A court mistake July 28 resulted in the woman's name and previously undisclosed evidence being posted online -- the fourth time sealed information had been made public in error.

Ruckriegle apologized for the series of court errors at a hearing two days later. By then, Clune had flown to Florida to be with his client, whose resolve had again withered, and Easter joined them.

During the visit, the woman informed Easter that she had not been honest with investigators on two points: that she had been late for work on the day of the alleged rape because of car trouble, and that Bryant had made her wash her face before leaving his room.

The woman admitted she actually had been late because she overslept after attending a concert in Grand Junction, Colo., and lied about it because she didn't want to jeopardize her job. She said she made up the part about Bryant making her wash her face because she did not think the detective believed the rape allegation.

"The first one was a white lie," Easter said. "The second lie was certainly of more concern because it was about one of the events that occurred during her contact with Bryant."

Prosecutors saw neither lie as central to whether she had been raped. And they knew that Bryant had lied to the police, too, when he denied having had sexual contact with his accuser before being confronted with DNA evidence to the contrary. But prosecutors were nonetheless troubled.

Easter told the woman that she needed to write the truth about both statements in a letter to the investigators.

Even before Wood entered the picture, the woman had told Clune she might be willing to drop out of the case if Bryant formally apologized. Clune had discussed the idea with Terrence O'Connor, an Eagle County attorney on the Bryant team whom he knew well and trusted, but those talks led nowhere.

The bulk of the DNA hearing transcripts were released Aug. 2, stirring a torrent of negative news coverage about the woman's alleged sexual activities. "The prejudice to this girl was beyond measure," Wood said. "It was one-sided and done just three weeks before jury selection was to begin."

Wood and Clune flew to New York for a round of television appearances, bashing Ruckriegle and saying that the woman might pull out of the criminal case. On Aug. 10, they filed a civil suit.

"The timing certainly wasn't ideal," Easter said. "But we didn't have any say over that decision."

Filing a civil suit while a criminal case is pending enables the defense to tell the jury that the accuser is motivated by money, damaging the credibility of the accuser. Mackey even planned to play tapes of Wood and Clune's television appearances to the jury.

But prosecutors had expected the defense to raise the issue of the accuser's financial incentive, even in the absence of a civil suit. "I planned to deal with that in [jury selection] and in my closing statement," Bakke said.

Ultimately, Bakke and Easter hoped the civil suit would provide the accuser with a vehicle to publicly lay out her version of the alleged rape before trial.

Wood's high-profile tactics created a stir. At the request of Bryant's lawyers, Ruckriegle issued a sweeping gag order, saying Wood and Clune had commented improperly on the merits of the case and on Bryant's character.

But Wood had not wavered from his initial impression that avoiding a criminal trial was in his client's best interest.

With the sealed transcripts released and the trial looming, Clune and O'Connor quietly resumed their talks at the woman's request, and by the second week of August they agreed that if Bryant were to sign a formal apology, she would not testify against him.

Clune stipulated that Bryant's words had to be directed to his accuser and include three elements: an acknowledgment that he knew her allegations were not made up; that she was not motivated by money; and that Bryant understood why she reported an assault to the police.

Meanwhile, infighting between Easter and Bakke over who would conduct the direct examination at trial had gotten so bad that the two prosecutors stopped talking to each other -- a development that distressed the woman and her attorneys.

"Their inability to even come to an agreement on who would handle her exam days before the start of the trial was a significant factor" in the accuser's decision to pull out of the case, Wood said.

"Every case and every witness has its problems, and this case and this witness were no different," he added. "But skilled lawyers handle them, not add to them."

Bakke, head of the sex crimes unit in the Boulder County, Colo., district attorney's office, had been brought into the case at the outset by Eagle County Dist. Atty. Mark Hurlbert to work with the accuser and serve as chief prosecutor. But Bakke's mother died suddenly in February, prompting her to take a monthlong leave just as critical evidence hearings were scheduled.

Easter, head of the sex crimes unit in Jefferson County, had been added to support Bakke, and saw her role suddenly increase. And Bakke, upon her return, lost her role as lead attorney.

Yet the accuser told Bakke that she wanted her to conduct the direct examination.

"Lin Wood didn't like Dana's style and had concerns about her level of assertiveness and aggressiveness and her ability to protect" the woman, Bakke said.

When Bakke told Easter about the accuser's preference, their relationship went cold. It was "very difficult and uncomfortable," Easter said.

"It was extremely tense," Bakke added. "We had done many trials together. We were partners."

With jury selection less than two weeks away, the two attorneys who would seek to put Bryant in prison -- possibly for life -- were not speaking. Easter wanted a mediator brought in, but Bakke rejected the notion. Ultimately, Bakke told Easter to do the direct examination if she could resolve the woman's concerns.

"I tried to get them back on the same page," Hurlbert said. "It's tough in a case like this, with three or four headstrong prosecutors all with different ideas of how to try the case."

Problems were also arising in the apology negotiations. O'Connor called Clune on the eve of an Aug. 20 deadline with a statement that was promptly rejected by the accuser.

"There was an apology for what she had been through, but not for his behavior," Clune said. "She wasn't going to just throw in the towel. It required a strong statement from Bryant and they were unwilling to make it."

Clune informed O'Connor, the defense lawyer, and Hurlbert, the prosecutors' boss, that the woman was ready for trial. But when he returned to his office, Clune had a voicemail message from defense lawyer Haddon, who said Bryant would apologize -- that he just needed Clune to specify the language.

Although the trial litigation fell squarely on Mackey, the overall strategy rested with Haddon, one of three founding partners of one of Colorado's most powerful law firms.

Clune's first reaction was to dismiss the offer, and he told O'Connor as much.

"We spent all this time to put this together. This girl went through hell in making the decision on whether to go forward," he said. "Then to come back and find this message from Haddon, I found that insulting."

Wood, however, said he recognized Haddon's involvement as a turning point.

"Haddon called her bluff," he said. "And she wasn't bluffing."

The two high-powered attorneys had been on the same side of an earlier legal fight in Colorado. John and Patsy Ramsey hired Haddon as their criminal lawyer when they came under scrutiny in the death of their daughter. John Ramsey eventually added Wood to his legal team.

Haddon and Wood clashed, but each also gained a feel for how the other operated.
"It's never too late," Wood assured Clune.

Wood believed that Haddon would not allow an apology to come directly from the defense -- something defense sources later confirmed.

"But he'd let us make a statement," Wood said. "By us drafting it, if the deal fell through, they could say they never wrote an apology."

So Wood and Clune prepared a statement and sent it to O'Connor on Aug. 23, four days before jury selection was to begin.

A day later Easter flew the accuser to Colorado for the mock trial. Bakke had been in Los Angeles preparing out-of-state witnesses and was caught by surprise.

"I didn't even know she was in town," Bakke said. "The next thing I knew we were going forward with the mock."

Mackey also was preparing for trial, and defense sources said she was confident a jury would find enough reasonable doubt to acquit Bryant. Like prosecutors, she was unaware that apology negotiations had been revived.

Even the accuser was being kept in the dark. "I didn't want to talk to her about a statement any more," Clune said. "She had made her decision to testify. Unless something so compelling happened, I wasn't going to bring it up with her again."

The mock trial provided a reason to do so.

Going in, Bakke and Easter expected the woman to do well on the stand. Months earlier, she had testified for nearly four hours under direct questioning by Mackey at a hearing in which the defense sought an exception to the state's rape shield law, which prevents most information about a victim's sexual history from being allowed into evidence. Despite a barrage of embarrassing questions, the woman held up well, according to prosecutors and Clune.

"She spoke confidently, clearly, and was very revealing. Jurors would have liked her," Bakke said.

But the mock exam was the first time she had been cross-examined and challenged about her statements regarding her encounter with Bryant.

The lawyer who conducted the cross-examination, Jefferson County prosecutor George Brauchler, was as harsh as Mackey would have been.

"Maybe we shouldn't have gone to the wall on that one," Hurlbert said. "When you are preparing a victim for trial, sometimes it's better to use baby steps. But we felt that because she had already testified [at the rape shield hearing], we would give her the worst-case scenario."

Wood was incensed over what he viewed as the failure of prosecutors to prepare the woman, saying she did not seem familiar even with her own statements to police.

"She was spontaneously trying to answer questions she had never considered," he said. "You can't teach a witness how to deal with cross-examination unless you show her how her answers on direct are going to be used against her.

"They tore down her confidence in an exercise that should be designed to build up her confidence."

Easter insisted that she and the woman had gone over her police statements as well as Bryant's lengthy statement to investigators. She suggested later that the woman's attorneys distracted her by emphasizing the civil suit.

"What happened in this case is somebody apparently communicated with her that she didn't have to do all this hard work, that there was another way," Easter said. "That is an option that is not available to most victims."

When Wood and Clune reached the woman hours after the mock examination, Wood asked her what she would do if they could get a satisfactory apology from Bryant.

"I would withdraw," she replied.

Clune told her that a revised statement was in the works. The woman expressed relief.

Now it was Wood's turn to bluff. Even though he had serious doubts at this point that his client would testify under any circumstances, he continued to push for an apology.

Bryant's lawyers had not decided whether he would testify on his own behalf, but had conducted their own mock trials, including one in which noted San Francisco criminal defense lawyer Cris Arguedas cross-examined the Laker star.

Unaware of the accuser's mock exam debacle and the extent of friction between prosecutors, the defense also worked secretly to strengthen the apology language and avoid a trial.

As jury selection began Friday, Aug. 27, the woman flew back to Florida while Bakke and Easter joined other members of the prosecution team at a private home outside Eagle for final trial preparations.

Bakke rehearsed her opening statement, which included a graphic account of Bryant's alleged actions. She detailed the physical evidence -- the genital lacerations, the bruise on the woman's jaw, the spots of blood on her underwear and on his T-shirt.

Prosecutors made a list of "what ifs" -- rulings the judge might make or tactics Bryant's attorneys might employ. The biggest question was whether Bryant would testify.

A key question not on the list: What if the accuser did not?

Unknown to the attorneys on both sides girding for their court showdown, Clune was meeting less than 15 miles away with O'Connor and another defense lawyer, Mark Johnson, who had been authorized by Haddon to work out the final apology language.

By the time prosecutors emerged from the retreat, Johnson had agreed to a much stronger statement, while insisting that it include language establishing that it could not be used against Bryant in the civil case.

It began: First, I want to apologize directly to the young woman involved in this incident. I want to apologize to her for my behavior that night and for the consequences she has suffered in the past year.

"In the old version Bryant apologized only for what she had gone through," Clune said. "The new version had him apologizing directly to her in the first sentence."

Johnson agreed to two other sentences in Bryant's statement that sealed the deal: Although I truly believe this encounter between us was consensual, I recognize now that she did not and does not view this incident the same way I did. I now understand how she sincerely feels that she did not consent to this encounter.

When Clune called his client in Florida with the new wording, she accepted it without hesitation.

As potential jurors were being interviewed in the tiny courthouse and network correspondents beamed live stand-ups from outside, Bryant agreed to the stronger apology language Aug. 30. Mackey initially objected to the agreement, but reconsidered and Bryant signed the statement the next morning.

For weeks afterward, Bryant's attorneys would contemplate whether the apology had been necessary for the accuser to pull out of the case.

At Clune's insistence, the statement was given to an attorney not affiliated with either side to hold until the case was dismissed.

Clune and Wood wanted a guarantee that the defense could not hold back the apology after the charge was dropped; the defense wanted to ensure that if the dismissal fell through the woman's attorneys could not release the apology.

On the morning of Sept. 1, the woman called Hurlbert from Florida and told him she would not testify. Hurlbert, Bakke and other members of the prosecution team listened on a speakerphone. Hurlbert called her his hero. "Thank you very much," the woman said, her voice trailing off.

"We were ready to go [to trial]," Bakke said later. "What's tough is that no one knows what this case is about. We never displayed our facts. I'm not used to being called incompetent and having it said that we were in over our head."

Easter was in court and missed the call. When she was told about it, she said, "I was very, very sad."

Clune had mixed feelings -- disappointment that Bryant was not tried, but relief for his client.

Wood, for his part, was elated, and quickly focused on aspects of the withdrawal agreement that could affect the civil suit. Johnson, the defense lawyer, wanted the case dismissed with prejudice, meaning it could not be refiled.

Wood, too, wanted an assurance that Bryant could not be recharged, but his motive was different. He planned to depose Bryant in the civil suit, and removing the threat of future prosecution would limit Bryant's ability to use the 5th Amendment right against self-incrimination to avoid testifying.

Upon learning of the developments, Ruckriegle summoned all parties for a closed-door hearing. A procedural wrinkle -- whether he had the authority to dismiss the case with prejudice -- caused a brief delay. But the case would soon be over, regardless of how the issue was resolved.

"At that point, we were going to dismiss the case no matter what, even if the defense said they wouldn't release the statement from Bryant," Bakke said. "Our concern was never to try to play into whatever deal Clune and Wood had with the defense."

The solution was a stipulation that the district attorney's office would never refile the charge. The judge called an open hearing late Wednesday afternoon; neither Bryant nor his accuser was present.

"For the solace of my client, she has the desire for this to be finished," Clune told the court. "One thing I want to make clear, judge, because rumors abound about whether there was a relationship to the civil case or any dollars being exchanged in consideration for the motion. Quite simply, the grounds given were the only basis for the motion. We have not even entered into a single discussion about money."

Ruckriegle dismissed the case, and Wood told the third-party lawyer to get the apology statement.

In the swirl that followed, Clune escorted the accuser's parents from the courtroom and Wood approached Haddon, whom he had not spoken with since a contentious phone conversation a few years earlier during the Ramsey case.

"Hal, I just wanted to say hello," Wood recalled saying. They shook hands and exchanged pleasantries. It had been a successful day for both men: Haddon's client had averted a messy trial and been assured of no future charges, and Wood could now pursue the lawsuit against Bryant.

Moments later Wood passed out copies of Bryant's signed apology to reporters and Hurlbert announced the dismissal on the courthouse steps.