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CNN Live Today

Kobe Bryant Case Legal Perspective

Aired October 16, 2003 - 10:25   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


KAGAN: Let's get some legal perspective on the strategies now employed by both the defense and the prosecution. For that, we're going to bring in Kendall Coffey, a former U.S. attorney and frequent CNN guest on legal matters. Kendall, good morning. Thanks for being with us.
KENDALL COFFEY, FRM. U.S. ATTORNEY: Good morning, Daryn.

KAGAN: The news coming out yesterday did not look that good for the prosecution.

COFFEY: No, I think the prosecution is going to win the battle in the sense that there's enough to find probable cause, a very low standard, Daryn. But the defense is scoring some real points here that are going to pay some real dividends down the road when this case finally goes to trial.

Some of the things we just talked about, some inconsistencies in her story. And frankly, I think bit by bit this case is tilting a lit bit more favorably toward the defense.

KAGAN: And so Pamela Mackey the defense attorney who took so much heat last week apparently knew what she was doing.

COFFEY: Well she was playing with fire in judicial ire, but the judge definitely vetted her inquiry yesterday about the graphic testimony about intimate apparel. Not clear if that's going to come into trial. As we know the Colorado shield law will apply to trial and will limit the testimony about past sexual conduct. That shield law doesn't necessarily apply in a preliminary hearing.

Still, some other things that Mackey brought out both yesterday and last week are showing some gaps in the prosecution case.

KAGAN: It will be interesting to see what they consider someone's past history when you're talking about evidence that is in a woman's underwear, how past is that? I mean that seems pretty current and could definitely have some direct bearing on trying to figure out who did this if anything to this woman.

COFFEY: Well, in the fact that the judge clearly decided to let it be talked about yesterday is a signal that that may be aloud in front of the jury.

And, Daryn, here is something else I thought was extremely important that came out yesterday. In the initial interview between the alleged victim and the police detective, she did not apparently tell him that she said no to Kobe Bryant.

She may have said that at a later point, but when we think about how this entire case hinges on the issue of consent and her alleged lack of consent, and if she left out the word "no" in her initial interview, that's going to take a lot of explaining down the road in front of a jury.

KAGAN: And also explaining how her story might have changed down the road.

COFFEY: How her story changed because most prosecutors look at the first interview with a suspect, with a witness or in this case with an alleged victim as really critical.

Something as important as the two letters "N-O" were said repeatedly during the course of the alleged attack, then you would certainly think that is something the alleged victim would be talking about first and foremost with the direct in the initial interview.

Apparently it didn't happen. There may be an explanation as to why it was left out. But that's going to be a big issue when this case goes to trial.

KAGAN: At what about this point that Gary Tuchman was just making, that even if this judge decides there's not enough evidence to bound it to trial, prosecutors can go around that. How can the prosecutors go around that?

COFFEY: Well, just as he described, they can do a direct file. And again, Daryn, I think the expectations are realistic here, the judge is almost certain to find probable cause and bind him over because all the judge does in this scenario, not look at the defense evidence, but essentially look at a limited preview of the prosecution's evidence in a favorable view of it from a prosecution standpoint.

It's such a minimal standard, that I think it's almost a certainty that he's going to be bound over for trial and the direct file mechanism isn't even going to be implicated.

KAGAN: And then just quickly, and taking it one step past that, there can also be civil action outside the criminal action.

COFFEY: Well I think that is in an inevitability. But the alleged victim is not going to want to bring it before trial because when you go on the stand if you're suing the defendant for lots of money, that can be used by the defense lawyer to impeach the motivation of the alleged victim at the time of the criminal trial.

KAGAN: Kendall Coffey, thanks for your expertise, sir, always great to have you along.

COFFEY: Great to see you, Daryn.

KAGAN: Appreciate it.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com







Aired October 16, 2003 - 10:25   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
KAGAN: Let's get some legal perspective on the strategies now employed by both the defense and the prosecution. For that, we're going to bring in Kendall Coffey, a former U.S. attorney and frequent CNN guest on legal matters. Kendall, good morning. Thanks for being with us.
KENDALL COFFEY, FRM. U.S. ATTORNEY: Good morning, Daryn.

KAGAN: The news coming out yesterday did not look that good for the prosecution.

COFFEY: No, I think the prosecution is going to win the battle in the sense that there's enough to find probable cause, a very low standard, Daryn. But the defense is scoring some real points here that are going to pay some real dividends down the road when this case finally goes to trial.

Some of the things we just talked about, some inconsistencies in her story. And frankly, I think bit by bit this case is tilting a lit bit more favorably toward the defense.

KAGAN: And so Pamela Mackey the defense attorney who took so much heat last week apparently knew what she was doing.

COFFEY: Well she was playing with fire in judicial ire, but the judge definitely vetted her inquiry yesterday about the graphic testimony about intimate apparel. Not clear if that's going to come into trial. As we know the Colorado shield law will apply to trial and will limit the testimony about past sexual conduct. That shield law doesn't necessarily apply in a preliminary hearing.

Still, some other things that Mackey brought out both yesterday and last week are showing some gaps in the prosecution case.

KAGAN: It will be interesting to see what they consider someone's past history when you're talking about evidence that is in a woman's underwear, how past is that? I mean that seems pretty current and could definitely have some direct bearing on trying to figure out who did this if anything to this woman.

COFFEY: Well, in the fact that the judge clearly decided to let it be talked about yesterday is a signal that that may be aloud in front of the jury.

And, Daryn, here is something else I thought was extremely important that came out yesterday. In the initial interview between the alleged victim and the police detective, she did not apparently tell him that she said no to Kobe Bryant.

She may have said that at a later point, but when we think about how this entire case hinges on the issue of consent and her alleged lack of consent, and if she left out the word "no" in her initial interview, that's going to take a lot of explaining down the road in front of a jury.

KAGAN: And also explaining how her story might have changed down the road.

COFFEY: How her story changed because most prosecutors look at the first interview with a suspect, with a witness or in this case with an alleged victim as really critical.

Something as important as the two letters "N-O" were said repeatedly during the course of the alleged attack, then you would certainly think that is something the alleged victim would be talking about first and foremost with the direct in the initial interview.

Apparently it didn't happen. There may be an explanation as to why it was left out. But that's going to be a big issue when this case goes to trial.

KAGAN: At what about this point that Gary Tuchman was just making, that even if this judge decides there's not enough evidence to bound it to trial, prosecutors can go around that. How can the prosecutors go around that?

COFFEY: Well, just as he described, they can do a direct file. And again, Daryn, I think the expectations are realistic here, the judge is almost certain to find probable cause and bind him over because all the judge does in this scenario, not look at the defense evidence, but essentially look at a limited preview of the prosecution's evidence in a favorable view of it from a prosecution standpoint.

It's such a minimal standard, that I think it's almost a certainty that he's going to be bound over for trial and the direct file mechanism isn't even going to be implicated.

KAGAN: And then just quickly, and taking it one step past that, there can also be civil action outside the criminal action.

COFFEY: Well I think that is in an inevitability. But the alleged victim is not going to want to bring it before trial because when you go on the stand if you're suing the defendant for lots of money, that can be used by the defense lawyer to impeach the motivation of the alleged victim at the time of the criminal trial.

KAGAN: Kendall Coffey, thanks for your expertise, sir, always great to have you along.

COFFEY: Great to see you, Daryn.

KAGAN: Appreciate it.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com