Case against Kobe
was flawed from get-go

It’s impossible for myself or anyone else, for that matter, to go back and see what Mark Hurlbert saw when he first examined the evidence against Kobe Bryant and decided to move forward with criminal charges.

But I think it’s safe to say that the case against Bryant was never a slam dunk. And it needed to be. Otherwise, there was no point in continuing.

With that in mind, Hurlbert and the Eagle County prosecutors’ office look as bad as Marcia Clark and Christopher Darden did when they asked O.J. to try on the glove. In fact, worse, because there was still a mountain of evidence against Simpson beyond the glove, so there was ample reason to believe a conviction would happen regardless.

The case against Bryant had always hinged on the testimony of the alleged victim,  plus some physical evidence that could have been cast into doubt by the skills of accomplished defense attorneys such as Pamela Mackey and Hal Haddon, who were working on an unlimited budget.

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After all, Barry Scheck successfully convinced the Simpson jurors that DNA evidence wasn’t really “evidence,” per se, and they bought it. What do you think would have happened if someone from Hurlbert’s office tried to argue that the bruising suffered by the accuser could have only come from a sexual assault — but had no expert to back up that claim, since the one they had hoped to hire, Michael Baden, bowed out in July because he himself had doubts?

No, the problem for the prosecutors wasn’t just a weak case, but a weak case against a world-famous celebrity such as Kobe Bryant. Because of the extreme difficulty of winning a rape conviction against an intelligent, articulate sports superstar with no previous run-ins with the law, Hurlbert should have dropped this matter before it wasted everyone’s time and drained his office’s budget of precious resources.

There were red flags from the beginning.

Eagle County Sheriff Joseph Hoy issued an arrest warrant for Bryant on July 3, 2003, without following the usual procedure of consulting first with the D.A.’s office. It may not have mattered, but it underlined early the unusual nature of this case. Then about two weeks later, after studying the evidence, Hurlbert charged Bryant with felony sexual assault.

On Oct. 20, Eagle County Judge Frederick Gannett ordered Bryant to stand trial, but indicated at the time in writing that he believed the case was  not strong. It was as if the prosecutors needed the bare minimum in order to put Bryant on trial, and the judge indicated publicly that that was all they provided him.

Issues concerning the credibility of the alleged victim arose, but it’s difficult to say what was true and what was the result of good defense lawyers throwing poison into the jury pool. Did she indeed have sex right before or right after the alleged rape? Was the semen of another man detected in her rape exam, or was it only a trace that could have resulted from faulty DNA testing? What about her emotional stability? The reliability of the friend and fellow hotel employee whom she allegedly first reported the incident to?

We may never know. The civil trial is supposed to move ahead, so some of these questions may be addressed. It still seems likely that Bryant will write her a check. I’m sure her civil lawyers and Bryant’s attorneys are trading proposals at this moment.

No matter. The prosecutors had hoped to win the case. Failing that, they wanted to save face. Instead, they wound up with egg on it.

I would like to give Hurlbert and his colleagues the benefit of the doubt and suggest that maybe he’s the soft-hearted type who was swayed by the accuser’s story and the emotional backing of her family. Perhaps he surveyed the sporting landscape, saw certain professional athletes getting away with indiscretions or out-and-out crimes because of their celebrity status, and he decided this was one coddled superstar who wasn’t going to get away with it.

Or maybe not. Maybe Hurlbert burns with ambition, and saw this case as an opportunity to further his career. Getting Kobe Bryant on a felony conviction would have been a huge feather in an enormous cap. “Hurlbert for U.S. Senate.” “Hurlbert for Governor.” Maybe he already had somebody working on campaign posters.

That may be a little unfair, but it’s a moot point now, because “Hurlbert for Dog Catcher” is more like it. He wasted hundreds of thousands of taxpayers’ dollars in order to pursue a case that kept unraveling a little more each day, and that’s all anybody will remember.

Again, it’s easy to second-guess. When the news first broke last summer, Hurlbert was looking at one case, and the one his office just dropped turned out to be drastically different because of various developments over the past few months.

But it doesn’t excuse him from moving forward without an airtight case. There could be no flaws. Not against Kobe Bryant. Hurlbert should have anticipated public attacks against the alleged victim. He should have realized that this wasn’t just a celebrity case, but one against a star athlete, promising a media frenzy involving sports radio, newspapers, magazines, television, internet and pseudojournalists trying to capitalize on the situation by digging up whatever they could about her.

Hurlbert should have considered all that. Apparently, he didn’t.

He should also have done a better job of gauging her resolve. One of the reasons the charges were dismissed Wednesday is because she has refused to testify in the criminal case. The death knell for the prosecution didn’t come Wednesday, but rather when she filed the civil suit. That was the fall that followed a string of stumbles.

For the prosecution, the only way this could have gone any worse is if Hurlbert had his car towed.

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