Denver Post

Battle over sexual history
Prosecutor files motion
By Howard Pankratz
Denver Post Staff Writer

Wednesday, October 15, 2003 - EAGLE - Any information concerning the sexual history of Kobe Bryant's accuser should not be publicly aired when his preliminary hearing resumes today, an angry prosecutor has told the presiding judge.

Deputy District Attorney Ingrid Bakke claimed in a motion filed Tuesday that last week defense attorney Pamela Mackey consciously misrepresented evidence "in order to smear the victim publicly" without telling prosecutors or Judge Fred Gannett she intended to do so.

Bakke said prosecutors don't want Mackey to disclose any further evidence of the accuser's sexual history in open court.

"To allow the defense to address sexual history matters of a victim at preliminary hearing, in open court, which are later deemed inappropriate evidence at trial, would completely abrogate the Rape Shield Statute and its purpose," Bakke said.

If such evidence is allowed in open court, the effect on potential jurors "will be at best difficult to overcome," she said. "The bell cannot be unrung."

During the preliminary hearing last week, Mackey, who represents Bryant, asked Eagle County Sheriff's Detective Doug Winters whether injuries to the accuser weren't consistent with those of someone who had slept with "three men in three days."

Prosecutors strenuously objected to the question, prompting Gannett to stop the hearing and call the lawyers into his chambers. About 6:30 p.m. Thursday, he adjourned the hearing without allowing Mackey to cross-examine Winters further.

Lawyers for many media organizations, including The Denver Post, will meet with Gannett and lawyers in the case at 8:30 a.m. today to argue that the defense portion of the preliminary hearing should not be closed to the public. The hearing, scheduled for 9 a.m. today, is being held to determine if there is enough evidence to send Bryant's case to trial.

Bryant, 25, is accused of sexually assaulting a 19-year-old employee of the Lodge & Spa at Cordillera near Edwards on June 30 and could face four years to life in prison if convicted.

Lawyer Tom Kelley, who represents The Denver Post, among other media outlets, said the public has a right to know what evidence the judge is considering in deciding whether there is enough to order the basketball superstar to stand trial.

"If it is fair to hear the prosecution case, it is only fair to hear the defense case," Kelley said.

During the prosecution presentation, Winters testified that the 19-year-old accuser was excited to meet Bryant at the upscale Lodge & Spa at Cordillera, where she was a front desk employee, and flirted with him as she gave him a private tour of the facility. She even agreed to five minutes of kissing and hugging in his room. But Winters said that when Bryant began fondling her breasts, buttocks and vaginal area, she strongly objected and tried to leave.

He then allegedly grabbed her by the neck, bent her over some chairs, lifted her skirt, pulled down her panties and raped her as she cried.

Defense lawyers agreed Tuesday that it would be unfair to close the hearing since the prosecution was allowed to present damaging evidence against Bryant in open court. Mackey and her co-counsel, Hal Haddon, had argued strenuously that the hearing should be closed.

And Jeralyn Merritt, a Denver lawyer and legal commentator, said she thought the personal attack on Mackey was out of line.

"I'm surprised they attacked Mackey the way they did. They haven't seen her evidence," Merritt said. "They say she consciously misrepresented. They don't know what she has developed through her witnesses and experts.

"They (the prosecutors) jumped the gun. I think they were irresponsible. I don't think it is fair. She repeatedly sought to close the hearing."

Merritt said if the public now hears only the prosecution side, the preliminary hearing will "smack of unfairness."

In her motion, Bakke noted that the Rape Shield Statute is designed to protect sex assault victims from humiliation and embarrassment. Further, she said, the law represents one of the means chosen by the General Assembly to overcome the reluctance of victims of sex crimes to report them.

She said for Gannett to allow further inquiry into the accuser's sexual history at this point in open court would nullify the intent of the statute.

Karen Steinhauser, a former prosecutor who specialized in sex assault cases, said she believes Bakke is correct.

Steinhauser said she believes Mackey asked a valid question when she asked Winters if the injuries might have been caused by the woman having intercourse in the days surrounding the alleged rape.

Steinhauser said it is an exception to the Rape Shield Law because such evidence can be said to show the origin of the semen or any injuries.

But continued inquiry in open court about the woman's sexual history might violate the Rape Shield Law because it might be deemed irrelevant and never see the light of day during any trial, Steinhauser said.

"We need to make sure that both sides get a fair trial," Steinhauser said. "If we are getting into an area that is highly, highly prejudicial to the accuser in an irrelevant way, that's why we have the Rape Shield Law."