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Interview With Larry Pozner, Wendy Murphy

Aired July 18, 2003 - 14:29   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.


KYRA PHILLIPS, CNN ANCHOR: Sexual assault complaints are routine matters for prosecutors. But when they're filed against celebrities, the whole world watches and everybody has an opinion. While we watch and wait for the D.A.'s decision in the Kobe Bryant matter, let's check in with tow legal observers.
Larry Pozner's a former public defender and law professor who's now in private practice in Denver. Wendy Murphy is a former prosecutor who teaches a sex crime course at the New England School of Law. She joins us From Boston.

Larry, let's begin with you. What took the D.A. so long?

LARRY POZNER, DEFENSE ATTORNEY: Well, the D.A. needs to see the evidence. An allegation alone won't prove a case beyond a reasonable doubt. They need to talk to the witnesses. Did anybody hear anything? Did anybody see anything?

And then they run lab tests and we don't know the importance of the lab tests because we don't know what the stories are of the two people. So it made sense to wait. And in fact, the one part of the case that hasn't made sense was the early arrest of Kobe Bryant. That should have waited until they made a decision to file or not file.

PHILLIPS: Wendy, let's lay out the facts that we know so far. Definitely this young lady was in Kobe Bryant's room and she was seen leaving that room crying, she did go to the hospital. What do you think?

WENDY MURPHY, NEW ENGLAND SCHOOL OF LAW: Exactly, Kyra. And she reported it right away. We know that there was also a report of ruckus in the room right before she came out.

This is the kind of information that helps prosecutors, at a minimum, figure out whether they've got enough to prove the absence of consent beyond the word of the victim. But, frankly, I disagree with Larry. There is no law that says the word of a person alone is inadequate as a matter of law to prove a case beyond a reasonable doubt. I've proved such cases, prosecutors do it every day. And not just in sex crime cases, in all kinds of cases.

I think what the prosecutors may have been waiting to do, however, is take a look at the physical evidence and see whether it jives with one story more than the other. I mean, if there were any inconsistencies on Kobe's side of the story -- and we are told he cooperated, which probably means he gave a statement -- if he described a series of events for which the physical and forensic evidence that was taken and then tested made no sense, then that is something that could lend very heavy handed in favor of prosecution and would likely help a jury reach a result of a conviction beyond a reasonable doubt.

PHILLIPS: Larry, let's say he is charged. Is it easier or difficult to defend a celebrity?

POZNER: Well I think it's always more difficult simply because the press is there. As you're covering it, this would not happen in a normal case.

And what we've learned is massive press coverage changes everything. The rule book gets changed, how people react gets changed, how witnesses show up in court changes. So you're a factor now in this case.

On the other hand, Kobe Bryant is not Michael Tyson and his reputation is that he is a gentleman, soft spoken, really much respected. So that part of it will favor him.

PHILLIPS: Would it be difficult to prosecute him, Wendy?

MURPHY: You know, it's a tough call because I really think it depends on who the jurors are.

Many jurors out there watching this case evolve are saying -- or many potential jurors are watching this case evolve and saying he's not entitled to touch anybody just because he is wealthy and famous and a great athlete. He's supposed to respect the right of a woman to say no, no matter what even if she's in his room, even if she's in there naked. He's supposed to leave her alone. So there could be a juror mindset out there that will hold it against him that he's famous and acts in this sort of entitled manner.

On the other hand, there are lots of people who could sit on this jury that would be saying to themselves, I just can't even listen to the evidence. None of it is sticking. I don't even care what the evidence is because this halo of celebrity around this incredible sports (UNINTELLIGIBLE). And I just see -- all I see is my hero. And so they may vote for an acquittal having nothing to do with the evidence.

What you really have to be careful about in a case like this is jury selection. It will make all the difference in the world to both sides.

PHILLIPS: Larry, I see you shaking your head.

POZNER: You know, she starts with he's either guilty and he'll be voted guilty or he's guilty and they won't vote him guilty. But we can't make that assumption that he's guilty or that he's misbehaved.

You know, when we talk about the importance of the lab test, if this woman says there was a struggle and a fight and they have examined him and examined her and find no bruising and no cuts and torn clothing, that will favor the defense.

So, yes, is her word important? Of course, her word is important. Every witness' word is important. But what we're trying to get at here is these cases search for surrounding evidence of guilt. And if a prosecutor doesn't have that surrounding circumstantial evidence, it makes the case ever so much more difficult.

(CROSSTALK)

MURPHY: ... out there, Larry. If you were on this case, how would you defend Kobe Bryant, if he were charged?

POZNER: It's all the same basic work. Did anybody hear anything? What did they hear? When did they hear it? Why did she go in the room? How long was she in the room? What did she report? How does her report fit against the lab test?

This isn't -- just because the client is famous doesn't mean the tactics change. You still try to get to the facts of the case and do those facts, prove guilt beyond a reasonable doubt -- because when the prosecution runs short of facts by the Constitution, the defendant is acquitted.

PHILLIPS: Wendy, you prosecute sex crimes. If indeed this is true, if he's charged, why do you feel this is an important case to prosecute?

MURPHY: You know it's important to prosecute every rape that comes to the attention of law enforcement officials. And in this country, we have a very ugly history of not going forward with rape cases.

Senator Biden several years ago in conjunction with the Violence Against Women Act submitted a report to Congress that showed less than 2 percent of rapists in this country ever see a day behind bars. And we need to do something about that.

We know that false allegations of sexual assault are at or around 1 to 2 percent, no greater than false allegations in any other kind of criminal context. And we know because the news stories are replete with these kinds of allegations against athletes that there is a disproportionate inclination on the part of certain entitled, wealthy man, particularly in organized sports, professional and college, to be violent against women. And, frankly, then, then to deny it even after conviction. O.J. is a -- well, O.J. wasn't convicted. But Mike Tyson, Jim Brown, athletes who despite being convicted continue to profess their innocence.

We don't do enough in this country to encourage women to report crime. And it's partly because of the kind of harsh judgment we launch against them when they do report. We start talking about their sexual histories, whether they're mentally ill. It's an ugly, sexist history in our legal system that we have to overcome.

So when people watch this case unfold, I think they have to be critical of the kinds of things that are happening when the victim's credibility is challenged. I think we all have to be critical and skeptical about claims, false claims that she's doing this for money, for example.

And we have to be open minded and understand that when human beings report acts of serious violence they come to the table presumed truthful because they are entitled as citizens to regress of their grievances.

PHILLIPS: It's a point well made.

Larry, I've got to ask you, if indeed Kobe Bryant is cleared, no charges come forward, does he come out of this smelling like a rose?

POZNER: No. No citizen who has been through this process ever regains 100 percent of their reputation.

By arresting Kobe Bryant before they filed charges, even if they now do not file charges they have done grave damage to him, to his family and in some sense to the justice system.

PHILLIPS: Larry Pozner, Wendy Murphy, we're going to have you back. Great conversation. Thank you.

MURPHY: Thank you.

PHILLIPS: The Eagle County, Colorado prosecutor will announce his decision in the Kobe Bryant case tonight 5:00 p.m. Eastern. CNN will have live coverage.

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 July 18, 2003 - 14:29   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
KYRA PHILLIPS, CNN ANCHOR: Sexual assault complaints are routine matters for prosecutors. But when they're filed against celebrities, the whole world watches and everybody has an opinion. While we watch and wait for the D.A.'s decision in the Kobe Bryant matter, let's check in with tow legal observers.
Larry Pozner's a former public defender and law professor who's now in private practice in Denver. Wendy Murphy is a former prosecutor who teaches a sex crime course at the New England School of Law. She joins us From Boston.

Larry, let's begin with you. What took the D.A. so long?

LARRY POZNER, DEFENSE ATTORNEY: Well, the D.A. needs to see the evidence. An allegation alone won't prove a case beyond a reasonable doubt. They need to talk to the witnesses. Did anybody hear anything? Did anybody see anything?

And then they run lab tests and we don't know the importance of the lab tests because we don't know what the stories are of the two people. So it made sense to wait. And in fact, the one part of the case that hasn't made sense was the early arrest of Kobe Bryant. That should have waited until they made a decision to file or not file.

PHILLIPS: Wendy, let's lay out the facts that we know so far. Definitely this young lady was in Kobe Bryant's room and she was seen leaving that room crying, she did go to the hospital. What do you think?

WENDY MURPHY, NEW ENGLAND SCHOOL OF LAW: Exactly, Kyra. And she reported it right away. We know that there was also a report of ruckus in the room right before she came out.

This is the kind of information that helps prosecutors, at a minimum, figure out whether they've got enough to prove the absence of consent beyond the word of the victim. But, frankly, I disagree with Larry. There is no law that says the word of a person alone is inadequate as a matter of law to prove a case beyond a reasonable doubt. I've proved such cases, prosecutors do it every day. And not just in sex crime cases, in all kinds of cases.

I think what the prosecutors may have been waiting to do, however, is take a look at the physical evidence and see whether it jives with one story more than the other. I mean, if there were any inconsistencies on Kobe's side of the story -- and we are told he cooperated, which probably means he gave a statement -- if he described a series of events for which the physical and forensic evidence that was taken and then tested made no sense, then that is something that could lend very heavy handed in favor of prosecution and would likely help a jury reach a result of a conviction beyond a reasonable doubt.

PHILLIPS: Larry, let's say he is charged. Is it easier or difficult to defend a celebrity?

POZNER: Well I think it's always more difficult simply because the press is there. As you're covering it, this would not happen in a normal case.

And what we've learned is massive press coverage changes everything. The rule book gets changed, how people react gets changed, how witnesses show up in court changes. So you're a factor now in this case.

On the other hand, Kobe Bryant is not Michael Tyson and his reputation is that he is a gentleman, soft spoken, really much respected. So that part of it will favor him.

PHILLIPS: Would it be difficult to prosecute him, Wendy?

MURPHY: You know, it's a tough call because I really think it depends on who the jurors are.

Many jurors out there watching this case evolve are saying -- or many potential jurors are watching this case evolve and saying he's not entitled to touch anybody just because he is wealthy and famous and a great athlete. He's supposed to respect the right of a woman to say no, no matter what even if she's in his room, even if she's in there naked. He's supposed to leave her alone. So there could be a juror mindset out there that will hold it against him that he's famous and acts in this sort of entitled manner.

On the other hand, there are lots of people who could sit on this jury that would be saying to themselves, I just can't even listen to the evidence. None of it is sticking. I don't even care what the evidence is because this halo of celebrity around this incredible sports (UNINTELLIGIBLE). And I just see -- all I see is my hero. And so they may vote for an acquittal having nothing to do with the evidence.

What you really have to be careful about in a case like this is jury selection. It will make all the difference in the world to both sides.

PHILLIPS: Larry, I see you shaking your head.

POZNER: You know, she starts with he's either guilty and he'll be voted guilty or he's guilty and they won't vote him guilty. But we can't make that assumption that he's guilty or that he's misbehaved.

You know, when we talk about the importance of the lab test, if this woman says there was a struggle and a fight and they have examined him and examined her and find no bruising and no cuts and torn clothing, that will favor the defense.

So, yes, is her word important? Of course, her word is important. Every witness' word is important. But what we're trying to get at here is these cases search for surrounding evidence of guilt. And if a prosecutor doesn't have that surrounding circumstantial evidence, it makes the case ever so much more difficult.

(CROSSTALK)

MURPHY: ... out there, Larry. If you were on this case, how would you defend Kobe Bryant, if he were charged?

POZNER: It's all the same basic work. Did anybody hear anything? What did they hear? When did they hear it? Why did she go in the room? How long was she in the room? What did she report? How does her report fit against the lab test?

This isn't -- just because the client is famous doesn't mean the tactics change. You still try to get to the facts of the case and do those facts, prove guilt beyond a reasonable doubt -- because when the prosecution runs short of facts by the Constitution, the defendant is acquitted.

PHILLIPS: Wendy, you prosecute sex crimes. If indeed this is true, if he's charged, why do you feel this is an important case to prosecute?

MURPHY: You know it's important to prosecute every rape that comes to the attention of law enforcement officials. And in this country, we have a very ugly history of not going forward with rape cases.

Senator Biden several years ago in conjunction with the Violence Against Women Act submitted a report to Congress that showed less than 2 percent of rapists in this country ever see a day behind bars. And we need to do something about that.

We know that false allegations of sexual assault are at or around 1 to 2 percent, no greater than false allegations in any other kind of criminal context. And we know because the news stories are replete with these kinds of allegations against athletes that there is a disproportionate inclination on the part of certain entitled, wealthy man, particularly in organized sports, professional and college, to be violent against women. And, frankly, then, then to deny it even after conviction. O.J. is a -- well, O.J. wasn't convicted. But Mike Tyson, Jim Brown, athletes who despite being convicted continue to profess their innocence.

We don't do enough in this country to encourage women to report crime. And it's partly because of the kind of harsh judgment we launch against them when they do report. We start talking about their sexual histories, whether they're mentally ill. It's an ugly, sexist history in our legal system that we have to overcome.

So when people watch this case unfold, I think they have to be critical of the kinds of things that are happening when the victim's credibility is challenged. I think we all have to be critical and skeptical about claims, false claims that she's doing this for money, for example.

And we have to be open minded and understand that when human beings report acts of serious violence they come to the table presumed truthful because they are entitled as citizens to regress of their grievances.

PHILLIPS: It's a point well made.

Larry, I've got to ask you, if indeed Kobe Bryant is cleared, no charges come forward, does he come out of this smelling like a rose?

POZNER: No. No citizen who has been through this process ever regains 100 percent of their reputation.

By arresting Kobe Bryant before they filed charges, even if they now do not file charges they have done grave damage to him, to his family and in some sense to the justice system.

PHILLIPS: Larry Pozner, Wendy Murphy, we're going to have you back. Great conversation. Thank you.

MURPHY: Thank you.

PHILLIPS: The Eagle County, Colorado prosecutor will announce his decision in the Kobe Bryant case tonight 5:00 p.m. Eastern. CNN will have live coverage.

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