The Denver Post
Bryant accuser faces questioning
Monday, March 01, 2004 -
EAGLE - The woman who claims she was raped by Kobe Bryant could undergo hours of questioning by defense attorneys on Tuesday about her sexual history and what she told acquaintances about her physical and psychological health, legal experts said Sunday.
"It is her history we are talking about and she is the one who knows her own history," said Karen Steinhauser, a former prosecutor and now a law professor at the University of Denver. The questioning of the Eagle woman, though it will be conducted behind closed doors, is expected to be the most closely watched part of the pretrial hearing today and tomorrow in Eagle. Bryant, an all-star guard for the Los Angeles Lakers, faces four years to life in prison if convicted of the Class 3 felony of sexual assault. He has admitted he had sex with the woman last June at the Lodge & Spa at Cordillera near Edwards, where she worked as a front desk employee, but said the sex was consensual. Prosecutors are attempting to sharply limit the questioning of the woman by Bryant's lawyers, saying in a motion that by issuing a subpoena to the woman to testify, Bryant's lawyers have embarked on a "fishing expedition" and are attempting to circumvent "the entire purpose of the rape shield statute." Under that law, evidence of an alleged rape victim's sexual conduct, sexual history or reputation are presumed irrelevant. But defense lawyers, such as Bryant's defense team of Pamela Mackey and Hal Haddon, are permitted under the law to present the judge with a motion accompanied by affidavits showing how such conduct or history is directly relevant to the defense of their client. If the judge finds that the offer of proof in the affidavits is sufficient, the court can hold a closed, nonpublic hearing at which the accuser can be questioned. In the Bryant case, presiding Judge Terry Ruckriegle has found the affidavits sufficient to order the hearing. But he said late last week that today he will consider prosecution motions to sharply limit the questioning of the accuser. Prosecutor Dana Easter, in a motion, has said, "The defense plans to call the victim on March 2, 2004, and intends to humiliate and embarrass her with allegations of conduct which have no bearing on this case whatsoever. "The defense, in this case, has been provided with more private and privileged information than almost any case with which (I) have been associated. Yet, the defense seeks more," Easter said. Experts say at the heart of the hearing will be defense contentions that bleeding in the woman's vaginal area may have been caused by consensual sex with other men around June 30, instead of a forcible rape by Bryant on that date at the Edwards hotel. Mackey has alleged the bleeding may have been caused by the woman sleeping with "three men in three days" around the time of the alleged attack. Also, the accuser may be asked about whether she openly talked with friends, acquaintances and family about her medical and psychological treatment and therefore waived her right to keep her psychological and medical records privileged. Bryant's attorneys have alleged that the woman attempted suicide on Feb. 23 and May 30, 2003, and has been prescribed anti-psychotic medications. They claim that the suicide attempts and her allegation against Bryant are an attempt to attract the attention of her ex-boyfriend. After the hearing, Ruckriegle will decide how much, if any, of the evidence is relevant and isn't protected by the rape shield statute. Evidence not protected by the rape shield law will be allowed at Bryant's trial. The trial date hasn't been set. If Ruckriegle doesn't limit the defense inquiry, as requested by prosecutors, defense attorney Larry Pozner believes the young woman could be questioned for hours. Among the possible questions: "Is it true you slept with A and B on these dates and isn't it true you bled before when you had consensual sex?" said Pozner, the former president of the National Association of Criminal Defense Lawyers. "The rape shield law says 'Thou shalt not smear her.' But if there is a relevant reason for the evidence to come in, it is admissible," Pozner said. But Steinhauser said that the defense must show that the relevance of the evidence outweighs any unfair prejudice against the accuser. Andrew Cohen, a Denver lawyer and legal analyst for CBS News, said the weighing process undertaken by Ruckriegle will be critical. "You (the accuser) are asserting a privilege. You are entitled to it," Cohen said. "But the judge has to evaluate how far the rape shield will extend in this case. The defense says it should be a limited extension. The prosecution is going to say it should shield everything about her sexual past." Legal analysts contacted Sunday agreed Ruckriegle will not declare the rape shield law unconstitutional, as requested by the defense. His holding the nonpublic hearing with the accuser - a step outlined in the law - shows he believes it is constitutional, some said. |