Denver Post

Bryant defense attacks
Judge to rule as soon as Monday whether case is strong enough to go to trial
By Steve Lipsher and Howard Pankratz
Denver Post Staff Writers

Thursday, October 16, 2003 - EAGLE - Attorneys for basketball star Kobe Bryant went on the offensive Wednesday, establishing that Bryant ended a hotel room incident when the woman resisted and presenting evidence that she'd had another recent sexual encounter.

The accuser went to her sexual-assault exam the day after the incident wearing panties that had semen and pubic hair in them belonging to someone other than Bryant, Eagle County sheriff's Detective Doug Winters said during the second day of Bryant's preliminary hearing.

Pamela Mackey, the lead defense attorney for the hearing, countered prosecutors' account of a violent rape, portraying the June 30 incident instead as a consensual encounter initiated by a promiscuous, flirty 19-year-old.

Mackey urged Eagle County Judge Frederick Gannett to dismiss what she called "an extremely thin case."

Prosecutors, on the other hand, said Winters' recounting of the woman's story and other evidence requires the case to be sent to trial in district court.

"He held her by the back of her neck with his hand during sexual intercourse," said Assistant District Attorney Gregg Crittenden. "He lifted up her skirt. She said 'no.' He pulled down her pants. She said 'no.' And he penetrated her from behind, and she was crying, and he held her."

Gannett told the packed courtroom that he would determine over the next few days whether prosecutors have demonstrated "probable cause" to believe a crime was committed and would release a written decision as early as Monday.

Bryant, 25, faces four years to life in prison if convicted of sexual assault in the incident at the upscale Lodge & Spa at Cordillera near Edwards, where he was staying while in the area for minor knee surgery.

Last week, during the first day of Bryant's hearing, Mackey drew fire for suggesting the woman's injuries could have resulted from having "sex with three different men in three days." Wednesday, Mackey backed up the suggestion when she questioned Winters about the semen and pubic hair that did not belong to Bryant.

"The accuser arrived at the hospital wearing panties with semen and sperm in them from somebody else, not Mr. Bryant, correct?" Mackey asked Winters, the sole witness presented during the two-day hearing.

"That's correct," Winters responded, conceding that the pubic hair was from a Caucasian and thus could not have come from Bryant, who is black.

Mackey also asked Winters if he tried to find the source of the semen and pubic hair. He said he contacted two men and asked for samples but never got them.

Winters also said the woman told him she had consensual sex with another man on June 28 and used a condom.

Defense points to interview

Additionally, Mackey pointed to Winters' initial interview with the woman, in which she indicated that, after five minutes of consensual hugging and kissing, she grew uncomfortable with the situation and tried to get out of the room but was blocked and held by the 6-foot-8-inch Los Angeles Lakers star guard.

"You learned that she never clearly told Kobe Bryant 'no'?" Mackey asked.

Winters conceded that he asked her "why she never told Kobe Bryant no" but said that in a later interview the woman said she "told him 'no' on a couple of different occasions."

VIDEO

D.A. Mark Hulbert's press conference: 9News' Matt Renoux Eagle County Sheriff's Detective Doug Winters: Kobe Bryant enters courthouse

Mackey then questioned Winters about the woman's statements that she was able to stop the alleged attack when she pried Bryant off of her.

"What the accuser said was, when she effectively communicated with Mr. Bryant, he stopped? When she took his hand away and moved his hand, he stopped?" Mackey asked.

Winters agreed with that depiction.

"There's no dispute he stopped?" Mackey asked.

Winters replied: "Yes."

Analysts: Holes in case

Legal analysts observing the hearing said the defense team blew holes in the prosecution case on a number of fronts besides the second man's semen.

For example, Winters acknowledged the woman specifically stayed on the job late to welcome the basketball star and later went to his room at his invitation, acknowledging to Winters that she expected "Kobe Bryant to put a move on her."

KEY POINTS

The two-day preliminary hearing in the Kobe Bryant sex-assault case allowed both the prosecution and the defense to lay out what they see as the key information about Bryant, his accuser and what allegedly happened the night of June 30. Prosecution points The woman's testimony. The 19-year-old told investigators that she was grabbed by the throat and forced over a chair, where Bryant lifted her skirt, pulled down her panties and sexually assaulted her. Sexual-assault exams. Both the woman and Bryant submitted to exams and turned clothing over to investigators. Although Bryant claims the sexual encounter was consensual, she suffered injuries to her vaginal area that officials say resulted from nonconsensual sex. Additionally, her blood was found inside her panties and on the inside front of his T-shirt. Bryant's comments. Kept secret during the preliminary hearing, a conversation with Bryant that was surreptitiously recorded by investigators that legal experts presume includes his initial denial of a sexual encounter. It may at some point be ruled admissible in court. Other witnesses. Prosecutors want to present at least one "outcry" witness who will attest to the woman's demeanor before and after the incident, and have lined up a slate of experts to discuss injuries she did or did not receive. Defense points The woman's testimony. According to a sheriff's detective, the woman admitted to flirting with Bryant, going to his room with the expectation that he would "put a move" on her, and participating in consensual hugging and kissing. Also, she initially did not recall telling Bryant "no" and said he stopped the alleged attack when she resisted. Sexual-assault exams. Although the panties that the woman was wearing at the time of the incident and the inside front of Bryant's shirt carried her blood on them, a different pair of panties she wore the next day contained semen and pubic hair from another man, and prosecutors want to show that her injuries could have been caused by sex with someone else. Bryant's comments. If the case goes to trial, Bryant has the right to take the stand and explain his side of the story. As a high-profile and very popular athlete, he is likely to command a certain amount of respect and admiration. Other witnesses. A night auditor at the hotel wrote to investigators that the woman returned from Bryant's room after only 10 minutes and did not indicate there was any trouble. She finished her work for the shift as normal. WHAT'S NEXT If Judge Frederick Gannett decides to bind over the Bryant case for trial in district court, the next step in the case will be an arraignment, at which Bryant will enter a plea and a trial date will be set. If the case is not bound over, prosecutors have 10 days to get the approval of a judge to file the case directly in district court. Such a move is rare following a preliminary hearing where not enough evidence was found to bind over a case.

Also, the detective testified that the hotel's night auditor reported that the woman returned from Bryant's room about 10 minutes later and seemed fine, even wrapping up her work for the day as normal. "What the night auditor said was the accuser did not look or sound as if there had been any problem," Mackey said.

"It's not one thing that's going to create reasonable doubt," said Larry Pozner, former president of the National Association of Criminal Defense Attorneys. "It's the entire constellation of evidence paints an extremely persuasive picture of consent and a woman seeking some sort of relationship."

Craig Silverman, a former Denver prosecutor, questioned whether a jury would ever convict Bryant.

"This is a stunning display of prosecutorial weakness and ineptitude," Silverman said. "This case could set back the plight of true sexual-assault victims for years to come, just like a false claim of racism hurts the cause of civil rights."

In a news briefing after the hearing, however, District Attorney Mark Hurlbert said he did not play all of his cards in the preliminary hearing.

"The probable-cause determination is a very low standard, and no prosecutor puts on the whole case at preliminary hearing," he said. "I'm confident the judge will find probable cause and will bind this case over, and I'm confident in this case against Kobe Bryant."

Last week, prosecutors depicted Bryant as aggressively attacking a starry-eyed fan, bending her over a chair and raping her with his hands around her throat.

"The thing about consent in Colorado is you don't have to say 'no,"' said Kathie Kramer, a spokeswoman for Denver-based Rape Assistance and Awareness Program. "Just because she didn't say 'no' doesn't mean consent."

Kramer also reiterated that Winters had warned the woman right away that making a false report was a crime, yet she wanted to continue, and noted that an evolving story is typical among people who have been traumatized and who initially overlook details.

Wearing a dark brown corduroy suit and a cream polo shirt buttoned to the throat, Bryant sat quietly at the defense table with his hands clasped in front of him, as he has throughout the proceedings. He flew in and out of the Eagle County Airport from Los Angeles, where his teammates are participating in training camp.

Originally scheduled for 9 a.m., the formal proceedings started about an hour late while Judge Gannett met with attorneys in his chambers to hear arguments over whether to close the remainder of the highly publicized hearing to the media and the public. The sticking point was whether Mackey's line of questioning violated Colorado's rape-shield law, which generally prohibits raising an alleged victim's sexual history.

Gannett indicated he had heard some testimony in the case "in camera" (in secret) to prevent the potential jury pool from being tainted by details of the case that may not be admissible in court. But he allowed Mackey to proceed in open court on the evidence indicating that the woman had had a sexual encounter with another man.

Meanwhile, in a documents filed Tuesday that add to the testy relationship between the sides, defense attorney Hal Haddon, Mackey's partner, said prosecutors deliberately misrepresented blood evidence found on the panties the woman wore during her encounter with Bryant.

"The clear implication of this testimony was that the accuser was bleeding due to the alleged sexual assault," he said. The prosecution deliberately failed to "put before the court all of the evidence concerning those panties."

The defense said that evidence had been given to Gannett, under seal, and it provided "compelling evidence of innocence."

Prosecutors, on the other hand, have accused the defense of a "deliberate and calculated" attempt to dredge up testimony about the woman's sexual history that is irrelevant at such an early stage of the case.

"What was even more unexpected was her (Mackey's) conscious misrepresentation of the evidence in order to smear the victim publicly," prosecutor Ingrid Bakke wrote in a court filing Tuesday.

Click here for court documents and other information on the Kobe Bryant case.