Thursday, September 02, 2004

Commentary on Kobe Bryant Case, by Wendy Murphy, Esq.

By Wendy Murphy, Esq.

As if a rape and a payoff aren't bad enough, the worst crime was committed by the prosecutor and the judge in the Kobe Bryant case, both of whom shirked their responsibilities to the public and to the integrity of the justice system by allowing the victim to "choose" not to testify.

This was not the victim's civil lawsuit, it was the public's criminal prosecution. Just like people who witness bank robberies and murder, victims of violence are required to take the stand and tell the truth. The victim no more had the power to refuse to testify than she had the power to command that the case be prosecuted. By letting the victim "choose" not to testify, the prosecutor and the judge endorsed what the public rightly sees as outright corruption.

You can almost understand why the victim would want to come up with some type of "deal", but when the very people responsible for protecting the integrity of law itself participate in checkbook justice, the harm to society is incalculable.

Public respect for the rule of law in criminal cases has been teetering around the hopper for a long time. And now that an alleged rapist has apparently bought his way out of a serious prosecution with the whole world watching, this colossal waste of public resources is sure to move us further in the wrong direction.

Checkbook justice rips at the core of what it means to live in a civilized and just society. That a deal struck was struck in this case is Exhibit One in the proof of why prisons are disproportionately full of minority men. Yet some of the very people who claim to care about this social problem will celebrate Bryant's "right" to buy his way out of this case. Shame on them.

Promoting corruption isn't the only problem. By dismissing such serious charges after the victim endured relentless attacks on her person, her privacy and her character, the judge and prosecutor have effectively rewarded intimidation tactics and ensured that more victims than ever before will suffer the same indignities.

Some will claim the defense did a great job by achieving this result for Bryant, but the truth is, any idiot can pay off a victim. No need for legal skills or intelligence; wealth and a lack or moral fiber will do.

The public has a right to assume that criminal cases will be resolved fairly, with a full airing of the truth. But in this case, not only was justice denied, the full picture of evidence that points at Bryant's guilt will never come to light because so much of it was ruled "too prejudicial" for pretrial public disclosure.

Without at least a full understanding of the evidence, the public will never know how much of an injustice the dismissal really was and whether tax dollars were truly wasted.

Instead, the public will assume, as they should, that the victim cared more about money than justice, and that Bryant must have been guilty because he was willing to cut a deal to make it all go away.

Still, the prosecutor was right to bring the charges as this is among the strongest non-stranger rape cases ever reported - which probably explains why, in his "apology" statement, Bryant all but admits his guilt.

The saddest part of the story may be that the victim is foolish enough to think money will fix her problems. It is more likely she will live in existential hell for the rest of her life because she will forever be known as the type of person portrayed in the tabloids as a mentally ill, drug addicted promiscuous woman who extorted Kobe Bryant, falsely accused him of rape and couldn't even keep her underwear clean.

The victim's only hope for regaining her dignity was to take the stand and tell the truth. Win or lose, she could have held her head high. Instead, she used the criminal justice system as leverage to ratchet up the value of her civil case and then she sold out. For this, she should hang her head in shame.

The one glimmer of hope in all this is that, as with most major disasters, meaningful change may follow.

Lawmakers around the country should enact statutes that compel victims and witnesses to testify in all criminal cases.

Only when hush money and intimidation incentives are removed will the justice system function as it should. Until then, payoffs and the practice of "victory by intimidation" will be the name of the game.

There should also be a political response from the public. No prosecutor or judge who would indulge such tactics deserves a position of public trust.

It's tough enough to fight crime when victims and witnesses are reluctant to testify simply because they can't take time off from work or they fear retalilation. This case adds fuel to that fire because it went away for all the wrong reasons.
The well-being of all people and the very integrity of law demand better.

Wendy Murphy
New England School of Law, Boston


Wendy Murphy is a member of CAVNET and a member of our Advisory Board.

A former assistant district attorney in Middlesex County, where she worked in the Child Abuse Prosecution Unit, Wendy Murphy now serves of counsel to the Boston law firm of Brody, Hardoon, Perkins & Kesten. Focusing her private practice on advocacy for women victims of violence, she has generated several test cases on the confidentiality of victim counseling records and has argued cases that have helped shape state law.

The founder and director of the Victim Advocacy and Research Group, she is associate editor of the Sexual Assault Report and the author of numerous articles and opinion pieces on the criminal justice system, sexual violence, child abuse, and related legal topics. She was a principal performer on the nationally syndicated television show, "Power of Attorney," and has served as a legal analyst on NBC, MSNBC, CNN, CNBC, Fox News, Court TV, "Dateline," "Good Morning America," "The Today Show," and NPR's "The Connection." She is also a regular columnist for Massachusetts Lawyers Weekly.

She received a B.A. from Boston College and a J.D. from New England School of Law.

The views expressed are those of the author, and are not necessarily those of CAVNET or its members.