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Labels and the Law

Nicholas Johnson

from

Kobe Bryant Enters Plea of Not Guilty
Kirk Johnson
New York Times
May 12, 2004


 
"What you have a vocabulary for, you are able to perceive," Nicholas Johnson, a visiting professor of law at the University of Iowa College of Law in Iowa City and a former member of the Federal Communications Commission, said in a telephone interview. "Just look at the labels on legislation, like the Clear Skies Initiative, the Patriot Act, No Child Left Behind. Labels make an enormous difference and lawyers are in the word business."




 AGLE, Colo., May 11 - Kobe Bryant, the basketball star, stood up in court on Tuesday, listened to the judge read the charge of sexual assault, then leaned down into the microphone and said, "not guilty."

It was a procedural moment - simple words at a formal arraignment that starts the six-month-or-less countdown to a speedy trial under Colorado law - and it was without drama or surprise.

But in a case that has attracted so much attention from the news media, words and their meaning have become the common currency. Just before the arraignment, for example, lawyers argued for nearly half an hour over what was communicated or not by the word "victim."

Mr. Bryant's defense lawyers have been vehement for months that he and the woman who has accused him of rape at a resort near Vail last summer had consensual sex. What that means, one of his lawyers, Harold A. Haddon, said in oral argument on Tuesday, is that until there is a finding in law that a crime was committed, using the word "victim" constitutes a kind of prejudicial communication that could taint the process. Mr. Haddon said he would like the word "defendant" avoided as well.

"In sum, all we ask for is content-neutral references to all the parties in this case," Mr. Haddon said.

The Eagle County district attorney, Mark D. Hurlbert, argued that "victim" must remain in use. Under Colorado law, he said, crime victims are offered protection and assistance, much of it channeled by the state's Victim's Bill of Rights. The word is a kind of triggering device, he said, having nothing to do with a formal finding of guilt or innocence.

"To strip her of that designation," Mr. Hurlbert said, "raises the chance of revictimizing her."

Chief Judge W. Terry Ruckriegle of District Court reserved his ruling on the question for another day.

In the delicate dance of language and positioning and spin that the pretrial phase of the Bryant case has become, words are matters of huge weight - projectiles lobbed out into the world of public opinion, and sustenance as well for the horde of reporters that covers every move.

Legal experts and communications specialists said the semantics about victim and defendant - and a big debate still to come over how to define "consent" in sexual relations - could be crucial in the case because every utterance is so amplified by the cameras and reporters.

"What you have a vocabulary for, you are able to perceive," Nicholas Johnson, a visiting professor of law at the University of Iowa College of Law in Iowa City and a former member of the Federal Communications Commission, said in a telephone interview. "Just look at the labels on legislation, like the Clear Skies Initiative, the Patriot Act, No Child Left Behind. Labels make an enormous difference and lawyers are in the word business."

Mr. Bryant, who faces four years to life in prison, or up to life on probation, if convicted of felony sexual assault, has not disputed that he and the woman, whose name has not been officially released, had sex at a resort hotel near Vail last June 30. Both parties say that she went to his room and that they kissed, but she told the police that he then became violent, pushed her over a chair and raped her. His lawyers have said there was no violence and that her vaginal abrasions might have been a result of multiple sexual encounters around the same time.

In such a nuanced battleground of interpretation, communications experts say that what jurors have absorbed before and during the trial through newspapers and television could become part of how they process what they are told by witnesses and lawyers.

"The jury is looking for a coherent way to explain what happened - a story to tell about it," said William E. Loges, an assistant professor of new media communications at Oregon State University, and a co-author of a recently published book, "Free Press vs. Fair Trials: Examining Publicity's Role in Trial Outcomes."

"The moment when it's most likely that media-generated information is going to intervene is when neither side has given a story that makes any sense, and the jurors have no coherent narrative," he said.

Professor Loges and his co-author, Jon Bruschke, a professor of communications at California State University at Fullerton, conclude in their book that the news media do not affect trial outcomes as often as people think because courts are usually pretty good at weeding out biased jurors.

Copyright 2004 The New York Times Company