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Denver Post
Judge orders Bryant hearing open
Friday, October 03, 2003 - Basketball superstar Kobe Bryant's preliminary hearing will remain open and his accuser will not have to testify, Eagle County Judge Frederick Gannett ruled Thursday.
Gannett also refused Bryant's request that medical records of his alleged victim be turned over to the defense before the hearing, scheduled for next Thursday. Defense attorneys said the rulings all but assure that Bryant will waive his right to the preliminary hearing, where the judge decides whether there is enough evidence for the sexual-assault case to go to trial. They said that if the hearing is held, the prosecution-oriented testimony of investigating detectives and medical personnel could turn potential jurors against Bryant because of the extraordinary publicity the hearing will receive. "I can't see any way there is going to be a preliminary hearing," said Jeralyn Merritt, a Denver lawyer and legal commentator. "I see no benefit to Kobe Bryant where the accuser is not going to testify and the information is going to come in through the hearsay of a police officer." Bryant, 24, is accused of sexually assaulting a 19-year-old Eagle woman who was employed at the Lodge & Spa at Cordillera on the night of June 30. Bryant has denied the allegation, saying he had consensual sex with her. District attorney's spokeswoman Krista Flannigan said officials were pleased that the accuser does not have to testify. "We hope this will minimize the victim's trauma regarding this process," Flannigan said in a statement left on her answering machine. Pamela Mackey, one of Bryant's attorneys, had argued that the preliminary hearing should be closed because it would impair Bryant's right to a fair trial. Mackey, who did not return phone calls Thursday, had argued that Colorado has a law that allows for the closure of preliminary hearings in felony sexual-assault prosecutions. But Gannett said the U.S. Supreme Court has recognized a qualified First Amendment right of public access to preliminary hearings. He said the high court has ruled that a preliminary hearing should be closed only if there is a "substantial probability" that the defendant's right to a fair trial will be prejudiced. The judge said there is no dispute that the Bryant case has been the subject of intense public scrutiny. Gannett concluded that if he were to close the preliminary hearing, in part or in whole, it would probably result in speculation that might be more damaging to Bryant's right to a fair trial than the "narrowly tailored evidence presented in an open hearing." Gannett also noted that under Colorado law, a defendant can't compel a victim to testify at a preliminary hearing, and rarely do defendants testify. Under the law, prosecutors aren't required to offer the testimony of the alleged victim but rather to present some competent evidence that isn't hearsay, he said. Gannett said he was convinced that the prosecution could present sufficient evidence through a detective and photos of injuries that the accuser said she incurred to make it unnecessary for her to appear. He questioned whether the videotape of the accuser's statement to authorities and audiotape of Bryant were relevant and said he could rely solely on a detective's testimony and the photographs to determine probable cause. Former Denver prosecutor Craig Silverman called the rulings a "total victory for the prosecution," to the point that the preliminary hearing should be a foregone conclusion and Bryant will be ordered to stand trial. "It's manifestly clear that the outcome to this preliminary hearing has been predetermined. The district attorney is going to win," Silverman said. "How do we know this? The judge has reviewed the prosecution evidence and has concluded that the accuser need not appear because there is probable cause without her video coming in, without Kobe Bryant's audio tape coming in." Gannett also ruled that the defense can't have the accuser's medical records because they have no bearing on whether Bryant should be ordered to stand trial.
Gannett said that at a preliminary hearing, a judge merely determines whether there are reasonable grounds to suspect a person committed a particular crime and that the medical records don't help in that determination. He said he would leave it to a trial judge to determine whether the medical records would be admissible later. |