Objection!: How High-Priced Defense Attorneys, Celebrity Defendants, and a 24/7 Media Have Hijacked Our Criminal Justice System

by Nancy Grace

  Why would they use a victim’s alleged lifestyle as some sort of justification for murder or rape? Because they can. I learned that answer in court many years ago. Attacks by the defense, as vicious and unreasonable as they may be, are usually aimed straight at the victim. When there is nowhere else to turn, no one else to blame, the tried-and-true defense tactic is to blame the victim.

  When the defense has no alibi, when prosecutors present eyewitnesses or DNA, when the defense is trapped and there’s nowhere to go, what can they do? Point the finger in the other direction—at the victim.

  It’s an old strategy that has become standard operating procedure in courtrooms across the country. There’s a reason this chapter is the 1 7 6

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  longest one in the book—the list of cases where this deplorable strategy is employed by the defense just keeps growing.

  T H E K O B E B R Y A N T C A S E : T H E N E X T G E N E R A T I O N

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  The Kobe Bryant case has brought back into the forefront a legal issue that has existed for decades: the treatment of a rape victim in the courtroom. Think about it for a moment. Say there’s a bank robbery in your town. When the teller who was robbed at gunpoint takes the stand, can you imagine the defense attorney asking, “Isn’t it true you had several one-night stands in college?” Or how about, “Isn’t it true you’ve been on birth control pills for some time now?” The state’s attorney would scream bloody murder, and the defense attorney would be—

  rightly—thrown out on his ear. Not so with sexual-assault cases. And therein lies the problem.

  Statistically, sexual assault and domestic violence are the two most underreported crimes on the books. All too often, the tables are turned and the victim is put on trial. It’s not unusual for a rape victim to be questioned about everything—from whether she drinks alcohol, goes to bars, or has frequented “bad areas.” Even her appearance comes into question. What possible difference does it make if a woman wears short skirts? I find this type of behavior exhibited by defense attorneys appalling. Rape-shield laws were created to protect against these uncon-scionable actions and to encourage victims to come forward, while protecting them from having their reputations ruined. These laws disallow from evidence a victim’s unrelated sexual past or anything touching on it.

  That includes evidence showing that a victim has lived with boyfriends, uses birth control, had abortions. Rape-shield laws also aim at preventing direct questions posed to the victim about her unrelated sexual history.

  The important thing to remember is that the victim isn’t the one on trial.

  O B J E C T I O N !

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  One of the things I believe that this country has learned from the Kobe Bryant case is that these laws don’t always work. Inevitably, there are always ways around laws protecting victims. Whether Bryant was guilty or not guilty, the alleged victim in this case was repeatedly attacked by his defense team and others out to exploit the sensational tabloid aspects of this case—and that is wrong.

  The alleged victim in this case went through hell. She received thousands of angry, menacing, or obscene e-mails and messages. An Iowa man pled guilty to leaving death threats on her answering machine. Another man broke into her home. Yet another man, a Swiss national, faced charges of offering to kill the woman for $3 million to

  “help out” the Bryant defense team. It’s ironic to me that it’s so much easier for some people to blame her for flirting with a married man or being in the wrong place—basically reinforcing the theory that rape victims “ask for it” and that somehow they deserve the treatment they get. I’m not quite sure why, but it’s more comfortable for many people to believe that the alleged victim in this case is a “gold digger” than to believe that a then-nineteen-year-old girl was raped by an NBA superstar.

  How can we expect victims to speak out if we cannot protect them from another, more insidious form of attack?

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  Stories about the alleged victim were planted like bombs and exploded almost daily during the Kobe Bryant case. Some accounts claimed that the young woman was bragging about her encounter with Bryant, while others focused on stories of multiple sex partners in the days surrounding the alleged incident. Most of the allegations were based on the loaded questions put on the record by Bryant’s defense attorney, Pamela Mackey. She asked highly objectionable questions in front of the full press pool, knowing they would repeat them as fact in their stories. Her strategy worked.

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  The Kobe Bryant case was over before a jury was even struck. Perceptions of the alleged victim were publicized there in Colorado and all over the country. Thanks to satellite dishes tacked on to towers, homes, and huts, the “news” was spread around the world.

  Mackey started out by calling the victim by name in an open courtroom packed with reporters—six times during the preliminary hearing alone. The judge repeatedly admonished the lawyer, to no avail. She knew who the real judge was: the jury pool reading all the news accounts of what went on in the courtroom that day. Judge Frederick Gannett’s admonitions were like water off a duck’s back. At the same hearing, in direct violation of the state’s rape-shield law, Mackey then alluded to the alleged victim’s sexual history. It was too late. The horse was out of the gate.

  While the defense blurted out the alleged victim’s name over and over in court within earshot of reporters, Bryant’s defense team insisted they were concerned about bad publicity. Sure they were, but only as it applied to their client. As for the press, the judge issued warnings in a three-page “decorum” order to lawyers and the media, promising reporters they wouldn’t get a seat in court if they publicized the name or photographs of the accuser.

  There is no law disallowing the media from publishing a rape victim’s name. Up until this point, there has simply been an unwritten agreement among outlets not to do so, since rape is so underreported largely because of the vicious treatment victims get in the courtroom.

  In the Bryant case, we saw the long-standing traditions of self-governing thrown out the window.

  Practically all U.S. news organizations, including the Associated Press, have policies against releasing identities of rape victims and did not release the name in the Bryant case. While Judge Gannett ordered lawyers and investigators to keep her identity secret, the press is a different matter. Similar rulings have been ruled unconstitutional, in that the name of the chief witness in a case is by its nature public, not secret.

  O B J E C T I O N !

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  There’s no way to enact a law requiring the media to withhold the name of a rape victim because it would infringe on the First Amendment to the Constitution. However, the alleged victim in the Bryant trial does have the right to seek civil action in that she is not a public figure, and during the case certain media divulged facts that put her in a bad light. A lawsuit on her part against outlets that printed her photo with damaging stories about her would not surprise me.

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  O F A T T A C K

  The blame-the-victim defense in rape cases has grown bolder with every passing year. In the past, the first line of defense was the traditional claim that there has been no sex whatsoever between the accused and the victim. Very often, the perp claims he’s never even met the rape victim. Once a rape is medically or scientifically proven, the defense then moves to the next stage, which is “Yes, we had sex, but it was consensual.” Along with the consent defense, often thrown into the defense pot for good measure is something like “She’s a tramp, she’s a hooker, she sleeps around, or she came on to me.” Yet another version of blame-the-victim is “She wanted money,” or “She wanted powder cocaine”

  and now, “She wanted crack.”

  In the Kobe Bryant rape case, we saw a tangle of traditional blame-the-victim defenses used. It started with “She’s a st
ar seeker,” went to

  “She wanted her fifteen minutes of fame,” then on to the usual fall-back—“She’s promiscuous.” This is one of the first times I’ve seen the inference that “she’s too ambitious” used as the subtext for the defense, although there was a hint of that in the infamous Central Park jogger case in 1989. Long story short, the Bryant case launched an attack on the alleged victim’s lifestyle and sexual history, real or imagined, like no other in recent memory.

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  More than one woman was targeted for vicious attacks during the Bryant case. Katie Lovell was misidentified as the accuser early in the case. Lovell and the alleged victim went to the same high school and had a number of physical similarities. A photo of Lovell, who’d been a member of the school’s dance squad, was posted on the Internet nam-ing her as Bryant’s accuser along with her name, phone number, and other personal information. More than a dozen Web sites followed suit.

  Her home was swamped with reporters, Bryant supporters, photographers, and hangers-on. Lovell had to hire an attorney to get her name and photograph removed from the sites. After a brief taste of what the actual complainant lived though, Lovell summed up the experience during an appearance on ABC’s Good Morning America by saying, “It has hurt me as a person.”

  Because of the nightmare she had to live through, Lovell demanded that Colorado lawmakers tighten the rules on identifying sexual-assault victims. In a room crowded with politicians, Lovell said Bryant’s real accuser, who by that time had already been identified on a radio broadcast and in a supermarket tabloid, had received death threats. “I can only imagine what she is actually going through. It will make people think twice about coming forward . . . ,” Lovell said to a legislative committee.

  This new generation of attacking the victim in rape cases flies in the face of rape-shield laws, which are designed to protect against such tactics. Why? Because rape cases are supposed to be tried on the facts at hand, not the victim’s alleged sexual history. You’d be astounded at the tactics I’ve seen used. I’ve heard defense attorneys ask everything from, “What were you wearing that night?” to “How many drinks did you have?” to “Isn’t it true you take the birth-control pill?”

  Besides being offensive and ridiculous, these questions are legally irrelevant.

  In the Bryant case, information would have been permissible during trial only if it was “offered for the purpose of showing that the act or acts charged were or were not committed by the defendant.” Preliminary O B J E C T I O N !

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  hearings, though, are not specifically mentioned in Colorado’s rape-shield law, as opposed to the actual trial. That is how Mackey’s actions at the preliminary hearing snuck through a legal loophole. In theory, there was no jury seated to be “tainted” against the alleged victim by the illegal evidence. The reality is, however, that the whole world, including the jury pool, heard not only the alleged victim’s full name, but numerous defense allegations that would likely never be allowed at trial—just as Mackey intended.

  R I C H M A N ’ S J U S T I C E

  On September 1, 2004, there was a shocking turn of events in the case of State v. Kobe Bryant. The alleged victim in the case refused to go forward. Reports surfaced that there was a civil settlement in the works, rumored to be in the millions. Prosecutor Mark Hurlbert seemed to have tears in his eyes when he announced that the state of Colorado was dropping charges against the NBA star. People all over the country booed and hissed and said, “I told you so.” For once, I had nothing to say.

  I was stunned. I have championed rape victims’ rights for so long. I vividly remember being present when the Georgia Senate Judiciary Panel passed the Georgia Rape Shield Law, which protects rape victims from having their names dragged through the mud and being painted as tramps—or worse. Whether this particular girl was a runaround or a tramp or a party girl was no one’s business. What I cared about was whether she had been raped. Her blood on the front tail of Bryant’s shirt along with vaginal lacerations and a bruise on her jaw said it all to me. I believed her. And then, bit by bit, it trickled out. Her sexual history, her medical history, her alleged suicide attempts—you name it. But those didn’t erase the blood and the bruise. I could never turn away from that.

  After watching the defense attorney, Pamela Mackey, in court and hearing what the judge was letting her get away with, I accepted that a 1 8 2

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  conviction would likely never happen. I repeatedly predicted either a hung jury or an outright acquittal. I never predicted that the case would simply be dropped.

  That ain’t justice.

  I don’t blame the young woman. Her whole life was turned upside down. Despite the outrageous personal attacks she endured, I always thought in the end the case would go to trial and that a jury of twelve would make a decision. It didn’t happen. After the last round of highly personal information about her, garnered through a series of closed-door hearings, was released on the Internet, I shouldn’t have been surprised it ended the way it did, but I still was.

  The only one ripped off was Lady Justice. A common ploy to raise the price of a civil settlement is to wait until the last minute—until you are literally on the courthouse steps set to strike the jury. I believe that’s just what happened here. At the eleventh hour, when trial was so near, the jury was waiting to be struck, when the price was as high as it would ever be—at that crucial hour—the case was dropped.

  Bryant released a public statement in which he stated that he believed their encounter to be consensual but now recognized that the alleged victim thought that the sex was not consensual. It read, in part, “I now understand how she feels that she did not consent to this encounter.” Hello! That’s what rape is—nonconsensual sex. It is logical to reason that Kobe’s defense would never have allowed the statement unless a settlement had been locked in at the highest price.

  Even though, as of this writing, both sides have denied there’s a financial settlement in the offing, I’ll wager a multimillion-dollar deal will go down. Count on it.

  Was she wrong? Yes. Do I blame her? No. I haven’t been in her shoes. Who I do blame, however, is the trial judge who took the case after the preliminary hearing. Judge Terry Ruckriegle allowed one devastating leak after the next and never got to the source of multiple leaks. I also blame the prosecutor. If I believed in my heart that a rape had O B J E C T I O N !

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  occurred, then that case should have been taken to trial, win or lose. I’d have called the alleged victim to the stand and then made my case. I would never, never let the courthouse be a high-class brokerage firm for an NBA star and an alleged victim, a middleman who brokered “justice” for money.

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  S T A T E V . K O B E B R Y A N T

  In the next two minutes, someone will be sexually assaulted in America. Six minutes from now, another woman will be raped. Each hour, thirty women are sexually assaulted, ten of them raped, in this great country of ours. After watching the Kobe Bryant saga, how many of those women will come forward?

  The way the Bryant accuser was treated was a disgrace, regardless of what one may think of Bryant’s guilt or innocence. Every alleged victim is due a certain degree of respect. Guilt is for the jury to decide.

  She was ridiculed, forced by threats to leave her own home, tracked like a hunted animal, and betrayed by “friends.”

  The defense team made sure the alleged victim’s reputation was poisoned long before opening statements were ever to be given, and nothing was done by the judge to remedy that. Now, believe it or not, a rape-crisis counselor is actually under federal investigation for allegedly trying to sell the girl’s private file. The judge in this case even disallowed the prosecution from referring to Bryant’s accuser as a “victim.” I guess vaginal bleeding and a bruise to the jaw weren’t enough for Judge Ruckriegle.

  I predict my colleagues on the
other side of the fence and I will argue about this case forever. There is, though, one thing that even they will silently agree to: After the Bryant case, would they come forward and report the crime if they were raped? No way. Think about it. Would you?

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  A S M A L L V I C T O R Y

  The goings-on in the Bryant proceedings triggered a change in Colorado state law in 2004. It’s a small step in the right direction—but there’s a lot more that has to be done to protect rape victims and prevent attacks on them in court.

  In April 2004, Colorado governor Bill Owens signed Senate Bill 46

  into law with the support of the Colorado District Attorneys’ Council. It gives alleged victims of sexual assault a better chance of maintaining anonymity as their cases make their way through the courts, by offering them the option of being identified in records and open court by a pseudonym, like Jane Doe.

  As of this writing, another bill in the legislative pipeline is Senate Bill 217, which would require all motions filed relating to rape-shield issues to be sealed, to ensure the allegations presented to a judge don’t become public until a decision is made on their admissibility. The bill would also affect Colorado’s current rape-shield law, ordering that evidence about a victim’s or witness’s sexual history must be presumed irrelevant unless it can be shown to bear directly on the facts of the case.

  Had this bill been passed into law prior to Bryant’s case, many of the defense’s claims about the alleged victim would never have been made public—at least until trial.

  T H E “ P R E P P Y M U R D E R ”

  C A S E : T A K I N G T H E “ B L A M E ”

  D E F E N S E M A I N S T R E A M

  Long before the Kobe Bryant rape case put the alleged victim on trial, there was the “Preppy Murder” case. Jennifer Levin, a pretty teenager who lived in SoHo in New York City, was killed in Central Park in August 1986. Her partially nude body was found early one morning O B J E C T I O N !