Denver Post

Bryant lawyer's tactics at hearing criticized
By Steve Lipsher
Denver Post Mountain Bureau

Sunday, October 12, 2003 - Advocates for rape victims accused a defense attorney for basketball star Kobe Bryant of playing "dirty pool" by breaking courtroom taboos in Thursday's preliminary hearing.

Pamela Mackey repeatedly referred to the 19-year-old accuser by name and suggested that her injuries could be "consistent with someone who had had sex with three different men in three days," treading a fine line with the state's rape- shield law and the judge's request to protect the woman's identity, some say.

"We have heard quite an outcry against this. It's just a smear campaign against the victim," said Cynthia Stone, spokeswoman for the Colorado Coalition Against Sexual Assault.

Colorado's strong rape-shield law prohibits delving into an accuser's sexual history unless the judge agrees it is germane to the case and prosecutors are given a 30-day written notice and a chance to argue against such revelations. But those rules apply specifically to trials. There is no mention in the law of whether they cover preliminary hearings.

And although alleged victims commonly are named in sexual-assault trials, the media attention surrounding the Los Angeles Lakers star prompted Eagle County Judge Frederick Gannett to issue a decorum order that, among other things, discouraged the use of the woman's name.

Mackey did not return calls on Friday.

Bryant, 25, is accused of sexual assault in a June 30 incident at The Lodge & Spa at Cordillera near Edwards, where he was staying while in the area for minor knee surgery. Bryant has admitted committing adultery but said the liaison was consensual.

During Thursday's hearing, Eagle County sheriff's Detective Doug Winters recounted an interview with the woman, a former Cordillera employee, who said mutual flirting with a celebrity she was excited to see turned into a forceful sexual assault despite her telling Bryant "no."

Winters detailed how her blood was found on the panties she wore as well as on the inside front of Bryant's shirt, and that a sexual- assault nurse examiner found her injuries "inconsistent" with consensual sex.

When Mackey then asked the carefully worded question - never stating that the woman had suffered the injuries with other men, just raising it as a possibility - prosecutors immediately objected. The judge called a conference in chambers and, a short time later, adjourned the hearing.

"When you look at what she did, she actually violated no real laws," Stone said. "She was very clever with the way she did it."

The woman's attorneys immediately disputed the insinuation from Mackey's question.

Former Denver District Attorney Norm Early, who sat in on the hearing as a legal analyst, lashed out at Mackey for raising the specter of sexual promiscuity, which he said clearly was intended for the news media and the potential juror pool.

"This was no other strategy than to smear the victim. That's why they wanted a preliminary hearing. No one thought the defense would stoop that low," Early said.

But another former Denver prosecutor, Craig Silverman, said it would be perfectly reasonable to raise the issue if it is true.

"This was clearly mud thrown for the court of public opinion. But let's see if it's legitimate mud," he said.

As for naming the woman, Mackey immediately apologized in court after the first couple of transgressions, saying that that's how Mackey's law firm identifies the accuser.

Some analysts believe the use of the name was accidental, while others ascribed darker motives to Mackey. But all agreed that the prohibition against naming the woman in court is purely a convention of this case because of the media attention.

On one occasion last month, the state judiciary itself failed to screen the woman's name, allowing one court document that mentioned it to be posted temporarily on the official court website until the mistake was discovered.

"It just sort of speaks again to the disrespect for victims of this crime," said Kathie Kramer, spokeswoman for the Denver-based Rape Assistance and Awareness Program. "Typically, in other crimes, we don't blame the victims or question their credibility as we tend to do with victims of sexual assault."