This got posted because of who wrote it.
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Susan Estrich
Prosecutor blew this rape case
October 27, 2003
Kobe Bryant must now stand trial for a crime that, unless the prosecution has something very big up its sleeve, he never should have been charged with.
The prosecution blew this one by not exercising its discretion, by not treating rape like they do every other crime.
Hard cases make bad law. From the perspective of the laws that protect victims' rights, this is a train wreck waiting to happen.
You have the worst possible facts; the worst possible victim; the worst possible case for maintaining privacy. The "nuts and sluts" defense has found its cover girl.
In the first interview with police, her story didn't include saying "no." By her own account, he stopped when she moved his hand away. She'd gone to his room to flirt with him. Nobody's got any visible bruises, scratches -- nothing. Nobody heard anything. There's a sliding door in the back. She works at the hotel, she got there the back route, she knows how to get out.
The first guy she ran into, the night auditor, she said nothing to. She waited until the next day, and came to the police station wearing underwear with semen and pubic hair from another man. She'd slept with one, maybe two other men in the preceding 24 hours. She'd attempted suicide twice in her college years.
This is one terrible case.
Not to mention that he will be represented by the best attorneys money can buy, and that it will all play out under a glare of national publicity the likes of which none of you can even begin to imagine.
Once the prosecutor's office did the investigation and learned even half of this, the prosecutor should have taken this young woman and her parents aside and told them very nicely: This case would be difficult to prosecute and win; the chances of a jury acquitting would be very high; Bryant isn't a danger to the community; and the costs to the office in terms of everything else it does would be extremely high -- so we're not filing. The prosecutor should have recommended that the woman pursue her case in the civil system if she wishes.
Read Gary Delsohn's terrific new book, "The Prosecutors: A Year in the Life of a District Attorney's Office," and you'll see how decisions are supposed to be made. It's called discretion.
Prosecutors have enormous power. Only they can initiate criminal charges. The decision to file means, for all intents and purposes, that a defendant stands trial. The judge, as we have seen in the Bryant case, is essentially the prosecutor's rubber stamp, as are grand juries in states that use them.
In the old days, most district attorneys set higher standards for rape cases than other crimes. The mere fact that she went to his room voluntarily would have eliminated this case from prosecution in many offices. This case, however, illustrates what may be an opposite trend: a reluctance to use prosecutorial discretion to say no.
In the criminal justice system, discretion is like toothpaste in the tube: squeeze it one place, and it just comes out somewhere else. If the prosecutor doesn't exercise it, someone else does. Most of the time. So if the prosecutor overprosecutes, the theory is, the jury will acquit.
And it probably will, although I'd feel more certain if Johnnie Cochran were asking the questions. But there are always misfires. There is always a danger -- because of bad strategy, because 12 people believe her and not him, because of racism or bad lawyering -- that in one case it will go wrong.
And even if a jury acquits, Kobe Bryant will never be the same. You don't get your reputation back, or your life.
Estrich is professor of law and political science at the University of Southern California. Contact her at sestrich@law.usc.edu .
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