Topic: Sports & Entertainment

No Apologies for Kobe

The number of celebrity trials that cable news deems worthy of around-the-clock coverage was reduced to only around, say, 37 by the stunning news that Eagle County Colorado had dropped all charges against Los Angeles Lakers star, Kobe Bryant.

This occurred in the middle of jury selection, after the expenditure of millions of taxpayer dollars by the prosecution and millions of sports consumer dollars by Bryant, so a parade of commentators, many of them veteran lawyer pundits who cut their teeth on the O.J. wars, went before the cameras to condemn, in order, the ethics of the profligate district attorney’s office in pursuing the case, and the motives of the alleged victim, who had the audacity to put Kobe through all this expense and misery without having the grit to finish the job.

Defense attorney Roger Cossack, for example, appeared on ESPN approximately every 15 minutes to express his disgust at Kobe’s accuser and the prosecution. His exchange with an on-line chatter is representative of his remarks:

Q: Are prosecutors in this country really this inept? Have you previously seen cases where the Court has made such egregious errors that contributed to the dismissal?

Roger Cossack: I don’t know if the prosecutors are always inept but they didn’t do a very good job in this case. I was disappointed in Hurlbert’s statement last night. I frankly thought he owed an apology to Bryant and the taxpayers instead of defending the accuser. He should have been angry at the accuser. For her to just walk away five days before the trial is outrageous. Kobe will forever be remembered by many as a rapist even though this never went to trial.

I think there were some mistakes made, yes. But when you make a charge of rape you have to be ready to substantiate that charge. You just don’t make these kinds of charges and walk away from court.

Is this a fair assessment of the case? Hardly. Legitimate accusers of popular celebrities since the dawn of popular culture have always faced an absurdly steep uphill climb to get any justice. Juries simply cannot abandon their starry-eyed view of public idols, even in the face of strong evidence, unless they are presented with proof too persuasive for even the most biased to discount or the celebrity in question is Mike Tyson. Professional athletes, movie stars, rap singers and Kennedys can literally get away with rape and murder, and prosecutors know it. When they bring charges against any of these, they do so knowing that chances of conviction are long. Cossack and others are saying, in effect, that under these conditions it is unethical to bring the charges at all. But that’s not what attorney rules of professional ethics say, and that’s not what good public policy says. The ethics rules say that a prosecutor shouldn’t bring charges that he doesn’t believe are supported by the evidence, not that he or she has to believe that he will win the case.

Cossack’s approach gives a green light to celebrities to rape at will, as long as they don’t get videotaped in the act. Is it worth millions in public funds to keep that light at least at yellow, so pop culture deities know that there is at least a risk that they will take a big hit to the wallet and their chances of being asked as a guest on Sesame Street when they decide that “no” means “hey, sexy, light my fire!” Eagle County has spent its millions to plant that seed of doubt, and the public should be grateful, because there are a lot of amoral stars out there.

What about the accuser, whom Cossack and his ilk are vilifying? Does she owe Kobe an apology because her rape accusation competed with his travails on the Lakers to make the last 12 months a hellish experience for the darling of the NBA? Not if she felt she was raped, she doesn’t. There’s a big difference between knowing that you’re going to be run through a public shredder by a pit-bull criminal defense team and actually enduring the experience, and Bryant’s alleged victim had been artfully painted as a venal skank before a single witness had been called. She had sacrificed quite a bit to go as far in the process as she did, and Cossack has a lot of brass to condemn her publicly for bailing out now.

Thanks to unconscionable revelations by the trial judge, her already flimsy chances of getting a jury to believe her over a sports giant had become microscopic. It is not her fault that the peculiar psychology of the American public finds the concept of a talented actor, singer or athlete breaking the law hard to accept. Cossack sneered on ESPN that it was suspicious that she was unwilling to subject herself to a grilling on the stand in a criminal trial but apparently willing to endure the same ordeal in a civil suit where she could win megabucks in damages. Suspicious? I’d call it sensible, given the likelihood that the criminal trial jury was likely to say, “Kobe? But he’s such a great guy! He wouldn’t do anything like that.” Even if somewhere in the dark recesses of their minds (attorneys just love jurors with lots of dark recesses) the jurors suspected that Kobe might have been guilty, they would be reluctant to send a star of his magnitude to jail. But find him liable for civil damages? “Liable” doesn’t sound as bad as “guilty.” And even multi-million dollar damages would hardly reduce Bryant to penury. The bottom line is that the alleged victim sees a chance that going through more media and defense team degradation will achieve some justice in a civil context, but has given up on the criminal system, at least when superstars are involved.

The subtext of the media’s attacks on the prosecutors and his former client is, of course, that Kobe must be innocent, and thus was the “real” victim here. We don’t know that. We do know that on top of the formidable standard of “guilty beyond a reasonable doubt,” an attempt to convict a celebrity defendant of a heinous crime has to overcome America’s toxic culture of celebrity worship. This time, the combination was too much to overcome, and the prudent (and certainly not unethical) course was to end the prosecution. But by pursuing it as long as it they did, Eagle Count prosecutors at least served notice that there is a definite down-side for celebrities who decide to exploit their near-immunity from convictionÂ…in Kobe’s case, about ten million in legal fees, a lot of hassle, lost endorsements, and yes, even some lost fans.

That’s an ethical objective. No apology necessary.

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