The Denver Post
Ruling a victory for Bryant
Saturday, July 24, 2004 -
In a major victory for Kobe Bryant, defense attorneys will be allowed to introduce evidence at trial of his accuser's sexual activity with other men during a 72-hour period surrounding her encounter with the basketball star.
District Judge Terry Ruckriegle ruled Friday that evidence of another man's semen found in the woman's underwear and on her body during a rape exam is relevant to the defense. The defense has argued that her injuries may have been caused by sex with at least one other man around the same time, possibly even in the hours after her encounter with Bryant. The ruling strikes a critical blow against the prosecution, which fought to keep out all evidence of sex with another man under the premise of the state rape-shield statute. "If she in fact had sex subsequent to Kobe, the prosecution has a huge hurdle to explain why that would not be a problem with her credibility," said Denver defense attorney Lisa Wayne, who has followed the case in Eagle. Prosecutors will consult with the alleged victim to see whether she wants to continue with the case. They also will consider filing an appeal of the ruling with the Colorado Supreme Court before the start of the trial, scheduled for Aug. 27, said Krista Flannigan, spokeswoman for District Attorney Mark Hurlbert. "I have no idea what we're going to do at this point," Flannigan said. "We're going to need some time to go through this piece by piece before we reach any decision as to how we're going to proceed." The judge also extended the period for the two sides to reach a plea bargain to Wednesday, something that legal analysts believe might be appealing to prosecutors at this point, although perhaps not to Bryant. "This is a devastating opinion for the prosecution, and I think it's possible they would consider whether or not they even want to go forward," said Denver defense attorney Dan Recht. "You can't overemphasize or overestimate the significance of this ruling. It goes to the heart of the case, which is who inflicted the injuries and whether this woman is being honest. "It calls into question her credibility. That is a big deal." Bryant defense attorney Pamela Mackey declined to comment. Cynthia Stone, spokeswoman for the Colorado Coalition Against Sexual Assault, termed the ruling a "mixed bag." While it limits the evidence of the woman's sexual history to the 72 hours before the rape exam, prosecutors contended it has nothing to do with what occurred in Room 35 of the upscale Lodge & Spa at Cordillera near Edwards. "It's pretty typical in rape- shield (arguments) that any sexual history that may be an explanation of physical evidence is allowed in." Stone said. "But its ultimate importance (will be determined by a jury) when weighed against the question of whether or not Kobe Bryant forced her to have sex."
Ruckriegle has extended the deadline for a plea bargain until Wednesday. The deadline previously announced by the judge was last Tuesday. A pretrial hearing is scheduled in the case on Friday in Eagle. Potential jurors are to report to the courthouse Aug. 27 to fill out jury questionnaires. Jury selection will begin Aug. 30. Opening statements in the trial are scheduled for Sept. 7.
The defense, however, can show its relevance in closed- door hearings, which in this case involved nine hearings and included testimony from the woman, now 20, and several of her acquaintances and alleged romantic partners. "The judge is saying that there is a whole lot more to this evening than 15 minutes," said Denver defense attorney Larry Pozner. "There is a pattern of conduct over days that the jury needs and deserves to hear." The judge ruled that all physical evidence taken from the woman - including the yellow panties that she wore to a rape examination the next day that were soiled with another man's semen - will be allowed at trial. Ruckriegle also will allow testimony indicating the woman may have had intimate relations with two "outcry" witnesses, who would support her claims. "It sounds like they (the outcry witnesses) may be more than friends. It sounds like one of them may well have been intimate with her and, therefore, not an objective historian," Recht said. Transcripts from two sessions of the rape-shield hearing were mistakenly sent by e-mail from the court reporter to seven media organizations, including The Denver Post. Ruckriegle quickly issued an order barring publication of the material. Attorneys for the media, claiming the order was an unconstitutional "prior restraint" of the press prohibited by the First Amendment, lost an emergency appeal of his decision in the Colorado Supreme Court but have appealed directly to the U.S. Supreme Court. Bryant, a 25-year-old all-star guard with the Los Angeles Lakers, has admitted to committing adultery but said the June 30, 2003, liaison with the hotel clerk was consensual. If convicted, he would face a sentence of four years to life in prison or 20 years to life on probation. Peter Weir, executive director of the Colorado District Attorneys Council, called the sex-history ruling "unexpected," saying that the Colorado Supreme Court ruled in a landmark case that evidence of other sexual activity should be excluded under the rape-shield law in cases in which the defense claims consent. But others saw it coming. "This ruling was anticipated. But just because we saw it coming doesn't change its devastating effect," Pozner said. "When the prosecution says to the jury, 'Believe her beyond a reasonable doubt,' the jury is going to know a whole lot more about her. And then they are not likely to be impressed." Staff writer Steve Lipsher can be reached at 970-513-9495 or slipsher@denverpost.com . Staff writer Howard Pankratz can be reached at 303-820-1939 or hpankratz@denverpost.com . |