Attorneys attack and defend Pamela Mackey's tactics in preliminary hearing.

Attorneys attack, defend Mackey's tactics in hearing

By Charlie Brennan, Rocky Mountain News
October 11, 2003

The graphic testimony and stunning conclusion to Day 1 of Kobe Bryant's preliminary hearing sent legal opinions flying in all directions Friday, but defense attorney Pamela Mackey remained at the center of the storm that she created.

The hearing for the basketball superstar was cut short Thursday when Mackey asked a question that implied Bryant's 19-year-old alleged victim had sex with three men in three days.

After an instantaneous prosecution objection and a more-than hourlong private conference among lawyers and the judge, the session was suspended. It's scheduled to resume Wednesday.

Mackey, scorned by many for repeatedly uttering the alleged victim's name in court - inadvertently, she contends - has drawn some of the public's attention away from her famous Los Angeles Laker client.

Former Denver District Attorney Norm Early, who attended the hearing, angrily called Mackey's maneuvers "sleazy," "despicable" and "contemptible."

Jill McFadden, executive director of the Colorado Coalition Against Sexual Assault, issued a scathing broadside against Mackey.

"This was a flagrant violation of the spirit of Colorado's Rape Shield law," she said, referring to Mackey's "conjecture" that vaginal trauma to the alleged victim could have been caused "by anything other than the brutal rape that the victim had described to law enforcement."

And McFadden isn't buying Mackey's claim that her repeated use of the alleged victim's name was an accident.

"We find it hard to believe that an experienced litigator such as Mackey would make such a 'mistake,' " she said. "We feel that this was a calculated attempt to further intimidate this victim by circumventing the laws that our state has established in order to protect a victim of sexual assault."

The question alluding to "three men in three days" is "not necessarily" a violation of the state's rape shield law, said Karen Steinhauser, a former domestic violence and sexual assault prosecutor in Denver, now a visiting professor at the University of Denver College of Law.

"One of the exceptions has to do with evidence that may tend to show that the origin of certain physical evidence is from a different source," other than what the prosecution is claiming.

Defense had 'factual basis'

As for the repeated use by Mackey of the alleged victim's name, Steinhauser said: "I'm not willing to jump on any bandwagon and say there must have been deliberate attempts to do that."

And, she said, "Pamela Mackey doesn't operate that way. That firm does not have the reputation of being a sleazy firm, or having sleazy defense attorneys. That's not their style."

Denver defense lawyer Craig Skinner also defended Mackey's question suggesting sexual promiscuity.

"Pamela Mackey's question, the big question, was appropriate," said Skinner. "The prosecution's job is to establish probable cause, and the defense's job is to tear it down."

He says the posing of that question indicates specific knowledge on the part of Mackey and partner Hal Haddon.

"Knowing that law firm the way I do, I doubt that they would have asked it, had they not had some factual basis for it," Skinner said.

Another defense lawyer coming to Mackey's defense is Dan Recht, past president of the Colorado Criminal Defense Bar.

"I think the criticism of the defense team, for raising the issue of her sleeping with three men, is totally unwarranted," Recht said. "If the injuries came from someone other than Kobe Bryant, they certainly have the right to raise that as an issue and a potential defense."

Recht - who says the defense lawyer made an honest mistake, all six times in naming the alleged victim - also is emphatic that Mackey didn't violate the state's rape shield law.

"The rape shield doctrine certainly does not prohibit the parties from using an alleged victim's name in court proceedings," he said.

In the 200 sexual assault cases he's handled, Recht said, the victim's name was used in court every time.

Eagle County Judge Frederick Gannett issued a decorum order July 29, instructing all parties in the case, lawyers included, not to use the alleged victim's name. Those who did could face sanctions, the order said. But Gannett later modified the order to say all parties are "encouraged" not to "broadcast, publish or otherwise disseminate" her name. And the order no longer threatens action against those who do so.

A 'he-said, she-said' case

The purpose of a preliminary hearing is for the prosecution to show the judge that there is sufficient evidence to send the case to trial at the district court level.

The case revolves around the different versions of what occurred between Bryant and the woman on June 30 at an Eagle County resort, where she worked as a concierge. She says Bryant raped her; he maintains the encounter was consensual.

Law professor Steinhauser said any discussion of winners and losers in Thursday's opening round should be viewed in that context.

"What we're looking at, as of this point of time, is, did the judge hear enough evidence for probable cause to be established," she said. "The law in preliminary hearings is that the court has to view the evidence in the light most favorable to the prosecution.

"I would say that probable cause was presented."

As for the lasting effects on the case from Thursday's extraordinary events, however, most declined to say either side won or lost.

"In general, it's going to be he-said, she-said," Recht said. "But the defense is going to have to explain the vaginal bleeding and the vaginal trauma. At least, at first blush, that doesn't sound like consensual sex."

The Bryant case could send ripples far beyond the Eagle courtroom, according to Steinhauser.

"My concern is that, because victims are already so reluctant to come forward, the fallout from this is that you will see young women who are terrified that their past, their history, is going to be used against them," she said.

Expect more 'surprises'

When the preliminary hearing resumes Wednesday, some of it may be closed to the public.

Krista Flannigan, spokeswoman for Eagle County District Attorney Mark Hurlbert, reaffirmed Friday that prosecutors will be asking Gannett to close a portion of Wednesday's proceedings.

The one sure thing, observers said Friday, is that more surprises are likely in store.

"It isn't over," said Recht. "My guess is, you haven't seen the last of the surprises from the defense at this preliminary hearing."

brennanc@RockyMountainNews.com or 303-892-2742

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