THE BLOG
06/21/2010 12:05 pm ET Updated May 25, 2011

Kobe Bryant Shouldn't Have Been Prosecuted

A
lot will be written about Kobe Bean Bryant in the wake of his fifth
NBA championship with the Lakers. Bryant is a phenomenal hoopster.
Who knows what more this 31 year old will accomplish in basketball and
beyond?

As
Kobe Bryant moves forward, with his
wife
Vanessa and daughters

at his side, I think it important to recall a time when life treated
the Bryants unfairly. Kobe Bryant should never have been
prosecuted for sexual assault in Colorado.

Hindsight on this matter is indeed twenty-twenty.

I
write this with absolute certainty even though I have never been to
The Lodge and Spa
at Cordillera
.
It was there in Room 35 on July 1, 2003 that Bryant, in town for knee
surgery, had sexual intercourse with a woman who worked at Cordillera.
I don't know with certainty what happened in Bryant's hotel room,
but I do know what happened in the Eagle County Colorado courtroom.
The misbegotten litigation correctly culminated in the
dismissal
of the prosecution on September 1, 2004.

The
criminal case against Kobe Bryant should have been rejected
earlier. As a TV and radio legal analyst,
I
attended
and blogged
the preliminary
hearing and other court proceedings. For sixteen years, I worked as
a Denver prosecutor and specialized,
among
other things
, in convicting rapists.

Rape
is an abomination. So is a false accusation of rape.
It is not politically correct to
talk about. But
false
claims of sexual assault occur
.
It is essential that prosecutors respect the rights of the accuser,
but also the rights of the accused.

Since
the Kobe Bryant accusation, the
Duke
Lacrosse
rape accusations
were falsely made in 2006 by
Crystal
Gail Mangum and now disgraced DA Mike Nifong
.
What are the obligations of prosecutors when such a harsh and damaging
accusation is made against prominent athletes, or any person?

First,
the constitutional presumption of innocence should be truly honored.
A DA should consider the known history of the accused. Consider
if the accused is a flight risk. Kobe Bryant can fly to the hoop,
but there was never any chance he was going to become a fugitive.
Prosecutors should also ponder whether they just might be getting used
as part of some
extrinsic psychological or other need motivating the accuser. Take your time. Investigate
the facts. That should include learning about the accuser.

Mark
Hurlbert is the Eagle County

District Attorney who made the bad call against Kobe Bryant. Eagle
County law enforcement could have investigated more before subjecting
Bryant and his family to the ignominy of arrest and prosecution.

After
the arrest, prosecution, and bad pub for Bryant,
his accuser had the ammunition she needed to get paid.
Her lawyers,
an
ex-Eagle County prosecutor

and nationally
famous
co-counsel
, were able
to extract an undisclosed civil settlement. Even if she
deserved money, Kobe Bryant should not have been prosecuted for rape.
If you don't believe me, rely on the
politically
ambitious Hurlbert
and
the woman, who together agreed that
the
prosecution needed to stop
.

The
mixing of criminal and civil justice is frequently troublesome.
As
a Colorado civil trial lawyer,
I
know that it is unethical to threaten criminal prosecution if civil
monetary demands are not met. This
ethical
prohibition
is especially
interesting in light of the
mixed
criminal and civil liability of British Petroleum and the actions of
the White House
this
week.

I
am still not sure whether Kobe Bryant is a good or bad person.
He is probably somewhere in between, like most of us. Bryant's immense
will to win in basketball, and his skill to get it done, are fantastic
to behold. I am old enough now to realize that athletic genius
hardly correlates with moral superiority. I am glad that eight
years ago, my wife Trish stopped us from naming our second son
Tiger Kobe.

Savvy
Colorado media observers might recall that the Kobe Bryant prosecution
brought about the
Caplis
and Silverman Show
.
Since

the NBA game five OJ - Bronco chase

sixteen years ago, Dan Caplis and I have been media legal analysts.

As
TV and radio pundits, Dan and I each covered big cases
including
Columbine, the Oklahoma
City Bombing trial
and JonBenet. But it was the Kobe Bryant prosecution
that led to our provocative back and forth about the merits of that
case, and landed us our
award
winning
and nationally acclaimed afternoon drive time show back in 2004.
Thank you Kobe Bryant. Thank you Mark Hurlbert.

Ray
Donovan
,
who served as Ronald Reagan's Secretary of Labor, once asked where he
could go to get his reputation back after being acquitted at trial.
How does Kobe Bryant get his
reputation back? The self-described
Black
Mamba
has provided his
own answers. He goes to the three point line, to the rim, and
to the free throw line. He goes to get his awards
with his wife and
darling daughters at his side
.

Kobe
Bryant's life story will be told through the ages. When that
history is told, it should be revealed that the criminal case,
People of
the State of Colorado v. Kobe Bean Bryant
, 03CR204, should have never happened.