Kobe's Trial Takes Constitutional Twist

This journal has deliberately avoided the Kobe Bryant trial in Eagle County, Colorado, until now. A "he said, she said" case involving a major celebrity is not a fertile subject for intellectual exercise so much as it is a fertile ground for gossip and related nonsense. Some of the nonsense revealed earlier this week shows some judges shouldn't be trusted with a gavel. The Supreme Court of Colorado decided 4-3 that the judiciary can muzzle the press in pursuit of the state's interest. At least, there are three judges in Colorado in their right minds.

The case arises from some in camera rape shield proceeding transcripts that an officer of the court accidentally sent to several media outlets. Colorado's rape shield laws are so protective of the accuser that some doubt whether the defendant's right to a fair trial doesn't suffer because of them. Be that as it may, the issue here is not how much the prosecution can put a woman through in the course of a rape trial, but rather, what the judiciary's power truly is.

The majority of the Colorado state supremes wrote, "We determine that the District Court’s order is a prior restraint against publishing the contents of the transcripts. We also determine that, narrowly tailored, the prior restraint is constitutional under both the United States and the Colorado Constitutions. The state has an interest of the highest order in this case in providing a confidential evidentiary proceeding under the rape shield statute, because such hearings protect victims’ privacy, encourage victims to report sexual assault, and further the prosecution and deterrence of sexual assault."

In a vacuum of fact, the opinion has a very chilling effect on a vigorous media. It is worse when one considers two facts the trio of dissenters highlighted. First, the information in the transcripts was available from other sources on which the media reported. Second, the media did nothing wrong in obtaining the transcripts. This wasn't Daniel Ellsberg stealing government documents to hand to the New York Times -- the court is the source of the mistake.

This decision is simply bad. If it is allowed to stand, it is horrific to think what the Heimatschutzministerium of Tom Ridge would do with such powers. "The state has an interest of the highest order in this case in providing a confidential evidentiary proceeding under the" latest Act to undermine American liberty in the name of fighting terrorists -- who haven't launched a single attack against the fatherland in 32 months.

For a synopsis of the decision by a very fine Colorado lawyer, visit Colorado Appeals Blog by Blain Myhre of Isaacson, Rosenbaum, Woods and Levy.


© Copyright 2004 by The Kensington Review, J. Myhre, Editor. No part of this publication may be reproduced without written consent.


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