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American Morning

Kobe Bryant Case

Aired December 19, 2003 - 07:17   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.


JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Kobe Bryant will be present at a key hearing today in the sexual assault case against him. Bryant's lawyers want access to his accuser's medical records. Judging by a slew of pretrial motions, the defense plans to build its case on the credibility, or lack thereof, of the 19-year-old woman who claims Bryant raped her.
Linda Fairstein, author and former sex crimes prosecutor in New York, joins us.

Hi, Linda.

LINDA FAIRSTEIN, FORMER PROSECUTOR: Hi, Jeff.

TOOBIN: OK, 17 motions have been filed. One says this whole thing was manufactured to get an ex-boyfriend's attention. Another says that she tried to commit suicide twice. Is this relevant?

FAIRSTEIN: Well, it may be relevant in this case, and we talked about this the last time I was on -- the last hearing a month ago, there's evidence that there was someone else's seminal fluid when this young lady went to the hospital. Perhaps it is the ex-boyfriend. You have to at least consider that it may be the same person.

The two suicide attempts at that age, 19, are quite unusual. If this woman has a diagnosed medical condition -- rumors were yesterday that it's schizophrenia. Schizophrenics can be raped. But maybe she's on medication that affects the way she perceives reality or reports it.

TOOBIN: That's an important new claim that the defense is making, that she's taking medication for schizophrenia. That is something, if true, you think almost certainly would come out in cross-examination of her.

FAIRSTEIN: I certainly do. And I think, as you know, what the defense is looking for here, they're hoping to get these records. But the first step would be to get them before the judge, to get the judge to even look at them to see if any portion of these claims might be true, and then turn the records over.

TOOBIN: But here we are. We're talking about her boyfriends, we're talking about her medical history, we're talking about what drugs she's taking. Aren't there rape shield laws? Aren't -- you helped create rape shield laws. Why are we talking about the accuser's background? Isn't that what rape shield laws were designed to stop? FAIRSTEIN: Yes. And rape shield laws have been enormously effective all over this country, and I don't think relationships this young woman may or may not have had before the events alleged with Kobe Bryant have any place in this courtroom. But the evidence that seems to be coming forward, that there is DNA from another man, perhaps in the hours after the assault and before she reported to the police I think that puts into play immediately who that will sexual encounter was with.

TOOBIN: A critical piece of evidence in this case is Kobe Bryant's t-shirt, which apparently has the woman's blood on it.

FAIRSTEIN: Yes.

TOOBIN: The defense claims that a search warrant for his hotel room didn't include the right to take the t-shirt. Does that make sense to you, that argument?

FAIRSTEIN: Well, of course, it makes sense. And you know from the defense perspective, anything that you can keep out of evidence before the jury would be a good thing.

It might be another indication that there was some sloppy investigative work in this case. There are ways to -- if you go to a hotel or an apartment with a search warrant and you find evidence, you see evidence in plain view or you discuss evidence that you didn't prepare for in the search warrant, you hold it right there, you call up your prosecutor, you amend the search warrant, and you take that in a proper way. And if they didn't take it, of course it's subject to being excluded.

TOOBIN: Quickly, Kobe Bryant was the top vote getter in the West in the All-Star game. Is his continuing popularity surprising to you, in light of all these charges?

FAIRSTEIN: Well, it's less surprising after the initial report was made, as events have unfolded recently. When we first heard this woman was choked, this, I think, sort of ridiculous motion the prosecutors made for today about measuring his hand span, this is one of the most powerful and physically large athletes in the world and there's not a mark on this woman's neck. So, why is he emphasizing the spread of his hands?

Other evidence that's coming out might suggest, yes, there was a sexual encounter, but maybe no force.

TOOBIN: Linda Fairstein, whose novels make excellent Christmas gifts. Thank you very much.

FAIRSTEIN: Thanks, Jeff.

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 December 19, 2003 - 07:17   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Kobe Bryant will be present at a key hearing today in the sexual assault case against him. Bryant's lawyers want access to his accuser's medical records. Judging by a slew of pretrial motions, the defense plans to build its case on the credibility, or lack thereof, of the 19-year-old woman who claims Bryant raped her.
Linda Fairstein, author and former sex crimes prosecutor in New York, joins us.

Hi, Linda.

LINDA FAIRSTEIN, FORMER PROSECUTOR: Hi, Jeff.

TOOBIN: OK, 17 motions have been filed. One says this whole thing was manufactured to get an ex-boyfriend's attention. Another says that she tried to commit suicide twice. Is this relevant?

FAIRSTEIN: Well, it may be relevant in this case, and we talked about this the last time I was on -- the last hearing a month ago, there's evidence that there was someone else's seminal fluid when this young lady went to the hospital. Perhaps it is the ex-boyfriend. You have to at least consider that it may be the same person.

The two suicide attempts at that age, 19, are quite unusual. If this woman has a diagnosed medical condition -- rumors were yesterday that it's schizophrenia. Schizophrenics can be raped. But maybe she's on medication that affects the way she perceives reality or reports it.

TOOBIN: That's an important new claim that the defense is making, that she's taking medication for schizophrenia. That is something, if true, you think almost certainly would come out in cross-examination of her.

FAIRSTEIN: I certainly do. And I think, as you know, what the defense is looking for here, they're hoping to get these records. But the first step would be to get them before the judge, to get the judge to even look at them to see if any portion of these claims might be true, and then turn the records over.

TOOBIN: But here we are. We're talking about her boyfriends, we're talking about her medical history, we're talking about what drugs she's taking. Aren't there rape shield laws? Aren't -- you helped create rape shield laws. Why are we talking about the accuser's background? Isn't that what rape shield laws were designed to stop? FAIRSTEIN: Yes. And rape shield laws have been enormously effective all over this country, and I don't think relationships this young woman may or may not have had before the events alleged with Kobe Bryant have any place in this courtroom. But the evidence that seems to be coming forward, that there is DNA from another man, perhaps in the hours after the assault and before she reported to the police I think that puts into play immediately who that will sexual encounter was with.

TOOBIN: A critical piece of evidence in this case is Kobe Bryant's t-shirt, which apparently has the woman's blood on it.

FAIRSTEIN: Yes.

TOOBIN: The defense claims that a search warrant for his hotel room didn't include the right to take the t-shirt. Does that make sense to you, that argument?

FAIRSTEIN: Well, of course, it makes sense. And you know from the defense perspective, anything that you can keep out of evidence before the jury would be a good thing.

It might be another indication that there was some sloppy investigative work in this case. There are ways to -- if you go to a hotel or an apartment with a search warrant and you find evidence, you see evidence in plain view or you discuss evidence that you didn't prepare for in the search warrant, you hold it right there, you call up your prosecutor, you amend the search warrant, and you take that in a proper way. And if they didn't take it, of course it's subject to being excluded.

TOOBIN: Quickly, Kobe Bryant was the top vote getter in the West in the All-Star game. Is his continuing popularity surprising to you, in light of all these charges?

FAIRSTEIN: Well, it's less surprising after the initial report was made, as events have unfolded recently. When we first heard this woman was choked, this, I think, sort of ridiculous motion the prosecutors made for today about measuring his hand span, this is one of the most powerful and physically large athletes in the world and there's not a mark on this woman's neck. So, why is he emphasizing the spread of his hands?

Other evidence that's coming out might suggest, yes, there was a sexual encounter, but maybe no force.

TOOBIN: Linda Fairstein, whose novels make excellent Christmas gifts. Thank you very much.

FAIRSTEIN: Thanks, Jeff.

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