Evidence of Prosecution Bias in the Kobe Bryant and Michael Jackson Cases
Why It's Troubling, and What Role It May Play at Trial

Defense lawyers often get a hard time for pushing limits. They file motions that only have a slim chance of winning, and they raise defenses that may seem improbable at best. (After all, what are the chances that Laci Peterson was really the victim of a Bay Area Satanic cult?) But when prosecutors are the ones who push limits in order to win their cases, it's far more disturbing.

Under legal ethics rules, defense lawyers have an ethical duty to "zealously" represent their clients. Many interpret that duty -- properly, I think -- to require them to go to the very limits of the law, though not beyond them, in their clients' defense. But prosecutors have a very different duty: To ensure that justice is done. That means not only making sure there is strong evidence against the defendant before indicting him, but also making sure that he receives a fair trial.

Recently, two prosecutors' offices -- in the Kobe Bryant, and Michael Jackson cases, respectively

-- flouted their duty to justice by exhibiting bias against the defendants they are prosecuting. Proof of this bias should be admitted during Bryant's and Jackson's trials, so the juries hearing their cases are aware that those with control of crucial evidence in the cases may not have been fair-minded toward the defendants.

Sometime this October, a staffer at the Colorado D.A.'s office prosecuting Kobe Bryant ordered 78 T-shirts from a website called Hangmantees.com. The T-shirts featured a symbol of a hanged man, drawn to resemble the stick figures typical of the game of Hangman. Hangmantees.com also reportedly gave the office two of the same T-shirts on October 9, the day of Bryant's preliminary hearing -- his first chance to try to raise questions about the evidence the prosecutors say establishes his guilt.

The backs of some of the T-shirts mocked Bryant's defense to the crime with which he is charged, stating "I'm not a rapist, I'm just a cheater." (Others mocked his relationship with his wife.) The backs of the T-shirts also featured his jersey number and many of the letters from Bryant's name -- presented in filled-in blanks, Hangman-style. It was plain that the solution to the puzzle was "Kobe Bryant."

Both District Attorney Mark Hurlbert and District Attorney Greg Crittenden say they disposed of their shirts. Hurlbert says he did so instantly; but Crittenden admits he only disposed of his T-shirt shortly before a court hearing on the issue. Meanwhile, what staffers in the office may have done remains unclear. Initially, Hurlbert denied the T-shirt order had been made -- indicating a staffer may have lied to him. But then he had to correct himself, and concede that the order had indeed been made.

Now, the judge has ruled that, by January 5, the Bryant prosecution must turn over the names of all those in the office who ordered a T-shirt, or took one for free.

Hurlbert has claimed the shirts are a "peripheral issue" in the case. But he's wrong. To the contrary, they constitute evidence that some in the D.A.'s office misunderstand what is perhaps the most fundamental aspect of the office's role: To ensure that justice is done, by means of a fair trial. After all, the T-shirts arguably depict perhaps the most loathsome alternative to a fair trial there can be: A lynching.

Moreover, even if one shares D.A. Hurlbert's view that the T-shirts are not racist, one cannot deny that the T-shirts mock Bryant and display contempt for him. A trial is an extremely serious matter; the T-shirts treat it as a laughingstock. And again, prosecutors' offices are supposed to be on the side of justice, not out to get the defendant. Accordingly, a staffer's decision to order the shirts, and D.A. Crittenden's apparent decision to keep his shirt, rather than immediately disposing of it, are very troubling.

The defense is right to ask for answers with respect to the T-shirts. Why were they ordered, accepted, or kept, if not to be worn or displayed? And why would they be worn or displayed by prosecutor's office staff, if not to proclaim Bryant's guilt long before any jury can consider the question? The duty of everyone in a prosecutor's office is to seek justice through a fair trial -- not to blindly seek the conviction of the defendant.

In 1993, Sneddon handled the investigation of an earlier child abuse claim against Jackson. The claim ended in what was reportedly a multi-million dollar civil settlement; charged were never filed. Sneddon has admitted he was frustrated by this outcome.

In recent interviews, Sneddon has repeatedly implied that Jackson was guilty of the earlier 1993 child abuse charges. He has done so despite the fact that it was his own office that declined to ultimately file charges.

Sneddon has also claimed that it would be possible to somehow drag these charges into the current Jackson abuse case, supposedly on the ground that they evidence prior criminal behavior. But without a conviction, the charges, alone, ought to be ruled inadmissible. Evidence of prior criminal behavior that does not result in a conviction is a classic example of prejudicial evidence. A defendant who testifies in his own defense opens the door to the admission of prior convictions, not prior charges. And there is no prior conviction here. Whether or not this evidence is technically admissible, the judge should exclude it due to its prejudicial nature. Once the jury has heard Jackson has faced two claims of abuse, it will assume he is guilty.

The risk that the prosecutor's office's actions and comments will taint the jury pool -- by convincing potential jurors of the defendant's guilt even before they walk into the courtroom for jury selection -- is plain. Prosecutors are not supposed to personally vouch for a defendant's guilt even at trial, let alone outside it; it's the evidence, not the prosecutor's opinion, to which the jury must look. And personally vouching -- as Sneddon has done -- for a defendant's guilt with respect to a prior offense for which he was never criminally charged, is arguably an even lower blow.

Yet Sneddon's inappropriate behavior does not end there. He has joked at a press conference that the Jackson case will at least inject money into California's failing economy. And he has referred to Jackson on Court TV as "a guy everybody calls 'Jacko Wacko.'" (Sneddon did subsequently apologize for this comment -- but only after his wife pointed out to him how inappropriate it was!)

In making this comment, of course, Sneddon implicitly tried to discredit Jackson's likely defense

-- that the alleged victim's family seeks money -- long before trial has even begun. The prosecution will have plenty of time to try to discredit the defense at trial; it need not get a head start with the potential jury pool before trial.

After reading the analysis above, readers may object, So what if the prosecutors are biased against the defendants? The defendants, in each case, will have terrific defense lawyers. They are wealthy, and they and their lawyers ought to be media-savvy by now. Surely that evens the playing field, doesn't it? The answer is: Not necessarily.

It's well known that the Fifth Amendment's "right to remain silent" and the Fourth Amendment's right against unreasonable searches and seizures limit the prosecution's ability to get evidence from the defendant. (That's why, in a prior column, I have criticized the Amendment's role in our system.) But what is less well-known is how limited criminal defendants' ability to get evidence from the prosecution is, given current rules of criminal procedure.

Suppose the prosecution has in its possession a piece of evidence that may help the defendant's case. The defense, meanwhile, has no idea that this evidence exists. If the evidence is exculpatory -- that is, if it tends to prove the defendant's innocence -- then the Supreme Court has ruled, in Brady v. Maryland, that according to constitutional due process, it must be turned over.

But who decides whether or not the evidence is indeed exculpatory? You guessed it: The prosecution. (And since the prosecution, by definition, believes the defendant is guilty -- that's why it indicted him, after all -- it's not going to be easily inclined to see even evidence that is quite favorable to the defendant as "exculpatory" under Brady.) That's why it matters so much whether a prosecutor is biased, or fair-minded toward the defendant.

A fair-minded prosecutor is more likely to be evenhanded in dealing with evidence -- and will consider defense theories, even though he or she is not convinced by them, in deciding what evidence to hand over to the defense. A biased prosecutor will be stingy in giving over evidence.

Suppose the prosecution, indeed, fails to turn over exculpatory evidence. And suppose the defense suspects there exists a particular kind of record that is probably exculpatory, though it hasn't yet received that record. The defense can then file a motion to try to convince the court to order the prosecution to produce any such exculpatory evidence. And if the defense is persuasive, it may get a court order urging the prosecution to comply with Brady. (Note, however, that if the defense doesn't even have a clue that this sort of evidence might exist, or fails to persuade the judge due to the necessary vagueness of its motion, then it's simply out of luck.)

But again, who decides what evidence, exactly, will be produced in response to the court order? You guessed it: The prosecution. The judge isn't going to ransack the prosecutor's file drawers and hand over to the defense copies of all the evidence the judge thinks is exculpatory. Instead, the judge will issue the order, and assume the prosecutor will comply. Thus, if the prosecutor isn't conscientious in complying with the court order, the prosecutor's failure to properly do so may never be discovered. In the end, only the prosecutor knows what lies within his own office's files.

Now consider this: If you were Kobe Bryant or Michael Jackson, would you trust the D.A. in your case -- given events that have occurred so far -- to turn over all of the evidence in his files that might result in your being acquitted? My view is that for either defendant to trust his D.A. to be fair-minded, at this point, would be naive.

As I've outlined, the prosecution has a lot more control over important evidence than the defense does -- and that's a major reason why evidence of bias matters, and should be admissible at trial.

Bias gives the prosecution a reason to be unfair to the defense when it comes to evidence production -- and if the prosecution is truly unfair, the defense will be helpless: It won't know what it doesn't have.

In the O.J. Simpson case, Judge Lance Ito famously allowed bias evidence to be introduced -- in that case, evidence of bias by police, not by prosecutors. Specifically, Ito allowed evidence that Detective Mark Fuhrman had twice used the n-word. (Apparently, there were many more recorded instances of Fuhrman using the word, but Ito allowed only two to be heard by the jury -- enough for the jury to understand that Fuhrman had used a racist word, but not so many so that the words overwhelmed all other issues at the trial.)

Ito got a lot of flak for allowing the evidence in. But he did the right thing. This evidence of Fuhrman's racism put in question the evenhandness of Fuhrman's treatment of evidence in cases involving African-American defendants: Might Fuhrman have ignored or destroyed evidence at the crime scene that could have cleared Simpson? Could he possibly have framed Simpson because of his race?

Many observers (myself included) thought that the prosecution mooted these questions by showing that there was plenty of evidence to implicate Simpson, even excluding Fuhrman's testimony, and plenty of evidence showing that Fuhrman could not have framed Simpson.

But apparently, the Simpson jury did not agree. Whether or not one agrees with their verdict, it was clearly proper for Judge Ito to allow them to hear evidence that was directly relevant to how they should weigh Fuhrman's testimony.

Can we be confident that D.A. Sneddon is impartial in his treatment of evidence relating to Jackson? Or that D.A. Crittenden -- who held onto that Hangman T-shirt for quite a while -- is impartial in his treatment of evidence relating to Bryant?

Certainly, there is evidence to the contrary. And the jury members should be allowed to hear it. In the end, it is for them to decide whether the prosecutors who are urging them to convict -- and the evidence those prosecutors are presenting to them -- are, or are not, reliable.

Hopefully, if the Bryant and Jackson cases go to trial, the judges in those cases will agree -- and, like Judge Ito, allow bias evidence to be introduced.