Race and the Kobe Bryant Trial

This is a partial transcript from The O'Reilly Factor, August 8, 2003. Click here to order the complete transcript.

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JOHN GIBSON, GUEST HOST: In the Unresolved Problem Segment tonight, the racial divide. A new poll finds that blacks and whites see the Kobe Bryant (search) sexual-assault case very differently.

The USA Today poll says more than two-thirds of blacks think the charge is false, while one-quarter of blacks believe it's true. But whites are about evenly split.

This public opinion mirrors past racial splits over legal troubles involving O.J. Simpson and Mike Tyson.

Joining us in New York is Dr. Jeffrey Gardere, a clinical psychologist and WWRL radio host. And from San Diego, Mark Mazzarella, a trial consultant and author of Reading People.

Let me ask my psychologist first. Is this so surprising that, before African-Americans know the facts about the case, they already think that this is a guy who is being railroaded?

DR. JEFFREY GARDERE, CLINICAL PSYCHOLOGIST: It's not surprising at all. In the African-American community, I believe that we're still a little bit in the closet as far as issues of rape, and we tend not to believe the female accusers.

But then when you look at the race issue where it is Kobe versus a white woman, they will fall behind this black person even if Kobe is someone they never really considered to be a black icon in the first place.

GIBSON: Did they or not?

GARDERE: I don't think they did, but they will continue to now see him as a black person because they believe that a black cannot get justice in America.

GIBSON: So, Doctor, I think that what's going on here is not a comparison to O.J. but a comparison to Clarence Thomas. I mean what the defense is going to say is here, Dr. Gardere, here is a guy who no matter how high you rise, you still can't get over the image of the black man as a sexual animal.

GARDERE: Absolutely, but so many people are saying -- and they've said it on my radio show -- well, Kobe, you felt that perhaps you were not black, that you were this very rich person, but now we're finally going to show you, and perhaps you'll learn that at the end of the day that you're still a black man, and, when it comes to sexuality, you still have to live with that stereotype of being that animal.

GIBSON: Mark Mazzarella, is it shaping up where the Kobe defense is going to have an obligation -- not an option, but an obligation -- to play the race card?

MARK MAZZARELLA, TRIAL CONSULTANT: Well, I think you've got a problem playing the race card with a jury that's likely to be all white.

GIBSON: Let me back up then. The first question is, considering these polling results and considering the virtually all-white nature of Eagle County -- I think the African-American population is 0.3 percent -- isn't the judge going to be under an obligation to grant a change of venue and get this in Denver where the defense can have some African-American jurors?

MAZZARELLA: Well, there's going to be a lot of pressure. I would be expecting one of those, and Denver would be a logical place to put the case.

It could be elsewhere, too. It could be Colorado Springs. It could be Fort Collins. There are other places that we could locate it. But the fact is you've got a very white venue currently. It's a white state. Certainly, you're going to get more minority jurors in some place -- for example, in Colorado Springs, but they're going to be more Hispanics. You're still not going to get a lot of black jurors, other than probably in Denver.

But you do a poll, and you find out whether it really made a big difference. I would expect that it will, just as it did in the O.J. case. The division between black jurors' predisposition and white jurors' predisposition in the O.J. case was much greater than it is in the Kobe Bryant case.

GIBSON: Tell me how this works. Does the judge have more of an obligation to grant a change of venue if the polling shows that there are wide differences in the way that blacks and whites view the case, that, In other words, as a matter of fairness, the defense would need to get into a place where they'd have a few black jurors?

MAZZARELLA: Well, you'd need an even playing field. And what you have right now, if it's 50-50 with whites, 50 percent of those jurors are predisposed to believe that he is guilty before you start.

And if you find out in Denver where you have a mix of the jury pool that includes, say, 20 percent, 25 percent, 30 percent blacks and the split is maybe only 28 percent or 35 percent or whatever are predisposed to believe that Kobe is guilty, that's a pretty persuasive argument to say you can't put him in an environment where you are adding this additional prejudice. He can be tried in Denver, and it won't be that big of a deal.

There's also factors like convenience. How are you going to have a circus like this in a small courthouse like the one that we saw on TV yesterday -- the day before yesterday where you have -- where you have a very small 40-some-seat courtroom and you have more press in there than you have 35,000 people.

GIBSON: In a way, it's better because the press doesn't have room to be in the courtroom. They're outside. They watch it on TV monitors. That's that. I mean you don't think for a moment this isn't going to be televised trial, do you?

MAZZARELLA: Well, I think it will be televised, but it's horribly expensive. You can see already the additional security measures that are being taken.

GIBSON: Right.

MAZZARELLA: Procedurally getting people in and out. This is a cow town kind of courthouse where people are used to having one bailiff who sort of says, hi, Joe, as people come and, all of a sudden now, they need a lot of security.

GIBSON: Dr. Gardere, just looking ahead, because I always assume that what you can predict will actually happen, in your estimation, how will race come into the actual trial? I mean is Kobe’s defense attorney essentially going to say -- as Clarence Thomas said – here’s a public lynching?

GARDERE: As we get closer to trial and as we get to the trial, I think that it will become polarized more along racial lines because it's going to open up the scab that we have that's covering the wound that has never healed, which is racism in this country, and that's what happens.

GIBSON: Right. But, in this case, there's an actual issue of guilt or innocence. I mean either he ignored her saying no or she never said no. Why does race have to become an issue in deciding for the jurors did he ignore her when she said no or did she even bother to say no?

GARDERE: I think the definitions of rape will certainly change. We've seen this in all the press accounts. It will change as to when no is no. However, I think, again, in the public opinion, people will start looking at the issues of race because racism is still a problem, and this will be a flashpoint to revisiting this issue again.

GIBSON: Mark Mazzarella, is there a danger that what few white people end up on the jury in Colorado, wherever it is, will just get offended that the whole idea of race is being introduced into this and it's going to make it even tougher on Kobe?

MAZZARELLA: Well, as a defense lawyer, there are only 12 people that matter, and, if you're trying to prejudice the jury pool generally, that's one thing.

But, once this jury gets picked, you're going to have 12 people, and, if, in fact, the concern that they might be racist is correct, the last thing you want to do to them is call them racist and say it's a public lynching because it will offend them.

GIBSON: Mark Mazzarella, Jeffrey Gardere, thanks to both of you.

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