It’s unclear where the fault line will be in the Kobe Bryant case: between black and white, male and female, tabloid and mainstream press, celebrity and common man, Kobe-sponsored brands and righteous consumers, sports fans and non–sports fans.
But the more psychic conflict the better. It’s a sort of Hegelian defense that the Kobe lawyers and media consultants are waging. Any position you take means you’re guilty of some other position: racism, sexism, classism, commercialism, media-circus-ism. The culture itself is being depended upon to supply reasonable doubt.
The preliminary hearing—ordinarily waived by a defense team because of the additional expense, because it might prejudice the jury pool, and because it tends to produce a foregone conclusion—was the early indication of both a full-court media defense and, perhaps, the need for such a defense.
There’s the blood, the tearing, the throat-hold, the “Kiss my penis” order. There’s Kobe bending her over the back of the chair.
We get the picture (at least we do if we read the New York Post—not if we read the Times): She was starstruck and flattered by his attention. But he came on too strong (only a brief window of opportunity to get this done—no time for pleasantries), and she got afraid (who wouldn’t be afraid of a six-foot-six, 220-pound athlete holding you by the neck?) and resisted. Perhaps quite accustomed to such resistance (pro forma or otherwise), he went ahead anyway.
And yet she still might not have accused him of anything. But, distraught, she encountered a concerned colleague who elicited the story.
Hence, a rape charge.
Of course, there’s the flirting, the fact that she visited the hotel room (sneaking in through a back entrance), and the consensual kiss. This wasn’t rape, the defense might successfully argue, but unhappy sex. Not rape but disrespect. That’s where the defense is going: She was intending to have sex (anticipating that he’d put the moves on)—just not wham-bam sex.
That might be an interesting and important precedent for the court to establish: pinpointing the exact moment when a shift in tone turns consensual sex into rape.
But if tone is the point—subtext, intention, shades of meaning, context—then if you can afford it and if you’re eligible for it (that is, if you’re a celebrity), you might employ a further litigation strategy.
Have a media trial.
It’s the ultimate defense.
It’s taking charge of the proceedings. You rule.
It’s also the ultimate thumb in the eye of the prosecutor who you believe is prosecuting you largely because of your media standing.
On a cost basis alone, you’ll overwhelm the prosecution (especially in a smallish community like Eagle County). You’ll single-handedly create a deficit that will take years to recover from. No judicial budget (even in a big town) can reserve enough for a celebrity-media trial.
Then, too, you’re messing with everybody’s head. Judge, prosecutor, jury, victim, and witnesses don’t know from exposure like this. Their real purpose becomes secondary. What they’re thinking about (the only thing they’ll be able to think about) is being at the center of attention. Being watched. Justice becomes self-conscious.
“This wasn’t rape, the defense might successfully argue, but unhappy sex. Not rape but disrespect.”
You change the context. Being looked at like this, everybody is thinking about how they want to be seen. What side they want to be on in the great cultural debates.
So it’s a political trial. Or it’s what we have instead of political trials. It’s a political trial—converted from one about specific charges to one about larger philosophic and social issues—distinguished by the fact that the political prisoner has unlimited funds to wage it. (It really is an interesting paradigm shift when the accused can outspend the prosecution. What might we be talking here? A $50 million defense?)
Now, of course, this is not a political trial but an entertainment-business trial. Pop culture is what we have instead of politics, so this makes some sense.
O.J., in media shorthand. But O.J. was a confusing and surprising event. Improvised. Anarchic. A true circus.
Kobe Bryant’s defense is more calculated. It may be more Sean “P. Diddy” Combs (on the gun and shooting charges) than O.J.—a highly effective presentation of entertainment-business stature and value.
It’s a ritualized occasion. There’s a lot of winking going on here. (The repeated use by Kobe’s defense lawyer of the victim’s name.) The affect is similar to that of the perfunctory (and often festival-like) trials in the South of white men accused of killing black men.
You can’t convict me, because I represent things you can’t convict. So many things way too large to contemplate. If you were to convict me, where would it end up?
I’m the Establishment.
Indeed, the pop-culture power structure may be the true power structure. After all, Kobe is more famous than . . .
If you bring down Kobe, what are you left with?
And then, come on. Is Kobe any worse than Arnold?
In fact, Kobe Bryant before this was rather goody-two-shoes. Your friendly neighborhood black sports star. And while this trial certainly ruins that persona, it may well give him another—more dangerous but just as large.
He’s a mere thug. if you don’t believe that, you won’t convict him.
The problem with this view, of course, is that it will be instinctively disputed (on some level) by every sports fan in America. The view itself is inherently snobbish and flies in the face of just about every cultural, business, and media trend. It therefore necessarily creates a Kobe defense. You can’t be a sports fan and not somehow excuse the culture of commercial sports. So if we can imagine the context for what happened (or might have happened), and if we assume that versions of what happened regularly happen, at the very least we’ve entered equivocal territory. It’s not just reasonable doubt about whether a crime occurred but reasonable doubt when it comes to anything having to do with sports and sex.
For anyone but the most dogmatic, it’s easy to see this as occurring in another world with vastly different customs.
Even the obvious women’s position—an overwhelmingly powerful man against a very unpowerful woman—is muddy. It isn’t merely man/woman. It’s celebrity/fan. And we don’t see celebrities as committing violence against fans. Rather, fans hurt celebrities.
Who has more to offer here? He or she? Much of America may well believe she gets more from being with him than he with her.
He’s an athlete-celebrity. With how many women could he do whatever he wanted to do? How many would just turn themselves over to him? (Hey, should he be penalized just for the bad luck of having stumbled on an ambivalent one?)
The commercial view is not inconsiderable either. It’s a brand you’re up against. It’s many brands—the Kobe brand and the great product brands endorsed by him—making this all something like the nuisance suits that big businesses always attract.
And yet, with all this power and money, it is still not possible to see this not as a lily-white town against a black man.
He’s the victim of the power imbalance.
Kobe’s up against it.
What would you do if you were the prosecutor?
Prosecutors always take refuge in the literal. They may have no choice. They don’t know from media—and don’t have the funds to bring in a specialist. They’re stuck with a white board. Diagrams. Arrows. Photos.
Obviously, though, to get a jury to pay attention to the five minutes at issue—a set of movements as significant as any in Kobe’s career—they’ll have to deconstruct all the other issues. Dismiss them. Convince a jury—fighting through the camera scrum—of the absolute irrelevance of everything but the five minutes. The fame, the sports, the glamour, the black/white thing. The prosecutors have to strip that out. Blot it out. Make Kobe a cipher.
Take as good an athlete as has arguably ever existed and make him expendable.
Which, of course, is not possible.
The likely strategy, then, is that the prosecutors will just ignore Kobe. Or ignore his Kobe-ness. They’ll pretend he’s other than who he is. They’ll pretend that this is something other than a media trial. Even if a prosecutor has stars in his eyes—which you can count on—he’ll keep trying to limit his and the jury’s field of vision.
That’s what we’ll see. A shambling, clueless government against an all-powerful, savvy pop culture.
The alternative might be to wage a dialectical trial, too, to try to put the culture (the low culture, anyway) on trial: celebrity, sports, media itself, a culture that deifies dumbed-down men, lavishly rewards them for physical aggressiveness, grants them carte blanche entitlement for whatever they want when they want it, and excuses them from normal social restraints. Sports culture and sports business and sports media really are what this is about. Who doesn’t believe that versions of what Kobe Bryant did to a concierge at that Eagle County hotel take place in hotels wherever athletes stay?
Now, this would take some kind of prosecutorial genius—a showman whom we are unlikely to find in Eagle County. And it’s unlikely that it would get Kobe Bryant convicted. But it might make for a real trial of the century.