Guest Column: The Kobe dilemmas

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Free press or fair trial? Rape Shield or right to confront accuser?

I don’t envy Kobe Judge Terry Ruckreigle. Nothing is more difficult for a judge than balancing the public’s right to know against the right to a fair trial… unless, of course, we’re also talking about balancing the intent of the Rape Shield Law against the right of the defendant to confront his accuser. Oh my, yes we are, and the poor judge’s career is on the block

First, let’s talk about the free press issue. A no win proposition. The judge is either regarded as a censurer and bureaucrat who distrusts the public with information about the case, distrusts a potential jury with the ability to set aside what they have read. Or the judge is regarded as a grandstander who is more interested in celebrity than a party’s right to a fair trial.

In the Kobe Bryant case, Ruckreigle is faced with a decision whether to allow the publication of transcripts from a closed hearing that a court reporter inadvertently e-mailed to the media. Ruckreigle ordered the media to destroy the material and enjoined them from publishing its content. As you can imagine, everyone chimed in on this torrid issue. The alleged victim’s counsel angrily said that his client had considered withdrawing herself from the case when “the people sworn to protect her rights have failed… [and] there is no safety from the court.” Kobe’s counsel testily replied “…this may well be about counsel’s opportunity to make a ringing speech about victim’ rights. This is a transparent and truly outrageous attempt to influence the court.” The battle cry had rung. And victims’ rights and media groups joined the skirmish.

An alleged rape victim’s right to privacy, including the right to be treated with dignity, versus the right of the people to be informed about important matters regarding their government. Certainly, nothing is more important than the people’s justice system. The only metaphor I can think of for this terrible dilemma is akin to James Stewart in (“Mr. Smith Goes to Washington”) meeting Gary Cooper at “High Noon.” Who do you root for? Well, the judge weighed in favor of keeping the contents of the closed hearings secret. The hearings purportedly relate to the defense’s alleged DNA evidence showing someone else’s sperm and semen were discovered during the alleged victim’s medical exam. They also purportedly contain defense arguments that the alleged victim’s sexual behavior in the recent days before and after the alleged rape were material and relevant and can’t be denied even under Colorado’s stringent Rape Shield Law. The issues are analogous to the Pentagon Papers case in which President Nixon attempted to enjoin the New York Times and the Washington Post from publishing the Pentagon Papers on the theory that to do so would compromise national security. In Kobe, the judge believes he must censure the press in order to insure a fair trial or to protect the alleged victim. If the spirit of the Pentagon Papers case is to be embraced, then he must be overruled. His order is an illegal prior-restraint. Even those justices who were concerned that the publication of the Pentagon Papers would do mischief to our government’s security came down on the side of the First Amendment, holding that the “hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained.”

In order to maintain credibility, Ruckreigle must be required to allow these transcripts, which are lawfully in the hands of the media, to be published. The good judge has other tools to insure a fair trial. He can conduct a thorough voir dire that reveals any prejudice on the part of prospective jurors; he can sequester them; he can order that they not read, listen or view any media during the trial; he can impose a gag order on the witnesses, attorneys and parties to reduce the risk that jurors will be exposed to inadmissible matters.

Kobe faces a possible life sentence, if convicted. The central issue is whether sex was consensual. This is a “he said, she said” case that, without the alleged physical evidence of trauma (implying force), there would simply be no case. Kobe has the right to show, if he can, that that trauma could have been caused by the alleged victim’s sexual encounters with others. That is only fair and just, and the Rape Shield Laws were never designed to prevent relevant and material evidence. This is not about the victim’s reputation, it is not about her past. It is about her sexual activity at/or about the time she claims Kobe raped her. The judge has made the difficult decision to let such evidence in. It is the right one.