Denver Post

Experts say 'bomb' aids Bryant
By Howard Pankratz and Steve Lipsher
Denver Post Staff Writers

Friday, October 10, 2003 - EAGLE - Legal experts said Thursday night that a new allegation about vaginal lacerations suffered by Kobe Bryant's alleged rape victim could be the thread that unravels the prosecution's case against the basketball star.

During the preliminary hearing in the Bryant case Thursday, Bryant defense attorney Pamela Mackey asked Eagle County sheriff's Detective Doug Winters whether the accuser's injuries weren't consistent with those of someone who had slept with "three men in three days."

Mackey "has fired the bomb. She has dropped the bomb," said Larry Pozner, former president of the National Association of Criminal Defense Attorneys.

Pozner and another legal expert say that Colorado's Rape Shield Law shouldn't prevent such information from being admitted in Bryant's trial.

"What is really happening is the prosecution is trying to hang onto what credibility (the accuser) has," Pozner added. "Even in the preliminary hearing, where everything is tilted toward the prosecution, the defense can show a lot of problems with the woman and her story."

Bryant, 25, was arrested July 4 and, two weeks later, charged with felony sexual assault after a June 30 encounter with a 19-year-old employee of the Edwards hotel where he had been staying. Bryant has said he had sex with the woman but maintains it was consensual. Thursday's hearing, continued to Wednesday, is being held to determine whether the prosecution has enough evidence to send the case to trial in district court.

Pozner and Karen Steinhauser, a former Denver prosecutor who specialized in sex-assault cases, say that if the defense has evidence that the injuries to the vaginal area were caused by the woman having sexual relations with other men in the days immediately preceding the encounter with Bryant, the evidence is admissible despite the rape-shield law.

The reason, Steinhauser said, is that such evidence can be said to show the true origin of semen or any injuries the accuser may have suffered.

Steinhauser said that Mackey is considered one of the most ethical lawyers in Colorado, one who would not have raised the issue unless she had a good-faith basis for doing so.

Pozner agreed that Mackey and co-counsel Hal Haddon have been able to get around the rape-shield law. Pozner said the information Mackey alluded to is why the defense didn't waive the preliminary hearing, as many experts had expected before Thursday.

"The credibility of the complaining witness is critical to the case. She has an alleged suicide attempt, and she has law enforcement taking her into custody for her own safety. This could potentially be the string that unravels the prosecution case," Pozner said.

Prosecutors are seeking to close the hearing when it resumes Wednesday.

Other legal experts, meanwhile, were divided on the question of whether the testimony of Winters, the prosecution's key witness at the hearing, will hurt Bryant or actually buoy his reputation. Some said Bryant came out way ahead, while others said he took a huge hit.

In a calm, matter-of-fact manner, Winters described how he interviewed the woman several times and spoke with two nurses who specialize in examining rape victims.

He said that although the woman, at the time an employee of the Lodge & Spa at Cordillera in Edwards, said that she kissed and hugged Bryant for five minutes in his hotel room, she adamantly said "no" when he grabbed her by the neck and raped her.

He also said that multiple lacerations on the woman's vagina were not consistent with consensual sex and that the woman told him that she cried throughout the five-minute encounter. She also said that after being raped, Bryant forced her to kiss his penis, Winters said.

Nathan Chambers, a Denver lawyer and former prosecutor, said he didn't think the testimony hurt Bryant because of what he called "glaring" issues in the prosecution's case.

Those issues, Chambers contended, were the woman's failure to immediately report the alleged assault and the fact that she didn't tell Winters about the penis incident until later - after she reported it to one of the nurses who conducted a rape-kit test.

Craig Silverman, a former Denver prosecutor and a commentator on legal matters, agreed, saying the testimony buttressed Bryant's claim that the sex was consensual.

"It has helped Kobe Bryant. (The story) is weaker than expected. She said she wanted to leave but then kissed him on the face and neck, and she agreed to it," Silverman said.

But Steve Siegel, a longtime employee of the Denver district attorney's office and a victim's advocate, said the accuser made an immediate outcry about the incident.

Winters testified he was told that after she left Bryant's room, the shaken and tearful woman returned to the front desk, counted money and closed out for the evening. The bellman noticed that she was very upset, Winters said, and when he asked her what was wrong, she told him she had been raped by Bryant.

"You (the rape victim) are in shock," Siegel said. "And the time it takes to gather yourself varies from individual to individual."

The fact that the accuser didn't tell a male detective about Bryant forcing her to kiss his penis, instead confiding first in a female nurse specializing in rape cases, was completely understandable, Siegel said.

The kiss was an act of humiliation and degradation that any woman might be reluctant to recount to a male detective initially, Siegel said.

"I think it is a factor of who you are and how quickly you develop a sense of safety" before the most degrading of the facts in rape cases are confided, he said.