Expert witness will be called to explain semen 'transfer'

By Peggy Lowe, Rocky Mountain News
August 4, 2004

Countering allegations about a mysterious "Mr. X," prosecutors announced Tuesday they will call an expert who can explain the unidentified semen found in two pairs of underwear worn by the young woman who has accused Kobe Bryant of rape.

On another front, defense attorneys blasted a Sports Illustrated Web site report that a woman who says she was groped by the Los Angeles Lakers star at a 2002 party at Shaquille O'Neal's Orlando, Fla., home could be called as a prosecution witness in the case.

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The prosecution's DNA expert, Rick Jobin, a Canadian forensic scientist, will testify about how "the crotch area of underwear of sexually active women may be repeatedly stained with semen" and the DNA will remain despite launderings, according to a court filing by the Eagle County District Attorney's Office.

Jobin's testimony will run contrary to another forensic expert, Elizabeth Johnson, who testified during a closed hearing in June that she found the DNA of a man, referred to as "Mr. X," in the purple underwear worn by the alleged victim the night she encountered Bryant. Bryant's DNA also was found in that pair of underwear.

Mr. X's DNA was the only semen found in a pair of yellow underwear the woman wore to her rape exam, 15 hours after the encounter with Bryant, Johnson said.

Bryant's attorneys are trying to prove that the woman had sex with a mystery man they have called Mr. X after she was with Bryant on June 30, 2003, at a posh resort where she worked in Edwards. That would explain her injuries, the lawyers say, and raise credibility problems for the prosecution.

The alleged victim's attorney, John Clune, denies that the woman was with anyone after Bryant. Bryant, 25, denies the rape allegation, saying the sex was consensual.

Testifying for the prosecution, Jobin will tell the Eagle County jury that several studies have shown that sperm "from semen stains made on cotton cloth may persist even after the stain has been soaked or washed," the district attorney's filing reads.

"Because the crotch area of underwear may be subjected to repeated staining with semen, one must interpret DNA evidence taken from this area with some caution," the filing said. "Mixed DNA profiles obtained from underwear of victims of sexual assault may represent episodes of intercourse that occurred weeks or months prior to the assault."

During her testimony before Eagle County Judge Terry Ruckriegle in June, Johnson said the district attorney's office wants to explain the presence of Mr. X's DNA by saying that the woman put on the yellow underwear that already had a "dry semen stain" in them.

But that "transfer theory" is "extremely far-fetched," Johnson said under questioning from Bryant's attorney Hal Haddon, because the alleged victim had Mr. X's semen on her inner thigh in three circles, as well as inside her body.

Prosecutors gave just a glimpse Tuesday into who will be testifying during the trial, which is set to begin Aug. 27. Jobin, who has lectured on using forensic science on wildlife in Canada, is on the list.

But Robert Gaensslen , a University of Illinois-Chicago forensic scientist, is out, as of a Tuesday filing. Henry Lee, the famous criminologist who testified in the O.J. Simpson murder case, is also an expert witness for the prosecution.

More uncertain is whether a 22-year- old Florida woman is on the prosecution's list as a witness. According to the online Sports Illustrated report posted Tuesday, the woman may be called by prosecutors to testify that Bryant subjected her to unwanted sexual advances during a party at former Laker teammate O'Neal's home, SI.com reported.

Denver defense attorneys were highly skeptical of the report.

"Sports Illustrated covers criminal law as well as Court TV covers the NBA playoffs," said Larry Pozner, a criminal defense lawyer. "This is absurd. It shows no knowledge of Colorado law and is so full of inaccurate statements."

The SI.com story says the woman, who works at Orlando's Planet Hollywood restaurant, was subpoenaed after she had initially called the Eagle County District Attorney's Office, but then backed away from testifying after watching the many threats aimed at Bryant's alleged victim.

The woman was working at a Thanksgiving dinner given at O'Neal's home, the story says, when Bryant cornered her and groped her. She didn't report the incident to police and received a call the next day from a Bryant associate, who apologized, according to the story. The article goes on to say that O'Neal could be called to testify at Bryant's trial.

Krista Flannigan, a spokeswoman for the Eagle County District Attorney's Office, refused comment on any questions about evidence and witnesses.

Dan Recht, a Denver defense attorney, said prosecutors can't automatically use that kind of testimony. First, they have to notify the defense and then get a hearing before the judge, who would then make a decision about whether it would be admissable.

"I'm surprised nobody has heard of such a thing or such a hearing if someone was going to do this," Recht said. "I don't even know if it would help the prosecution's claim if there was another unsubstantiated claim."

Also, under Colorado rules of procedure, any information without proof, relating to past "bad acts," can't be used at trial, lawyers said. Eagle County District Attorney Mark Hurlbert has said he wouldn't use "past bad acts" at Bryant's trial.

"The allegations by Sports Illustrated are classic 'prior bad acts,' " Recht said. "Hurlbert has said they're not using them. If they are, they're contradicting what he said."

Prosecutors don't get to hold such a witness "in their pocket," then call her as a rebuttal witness, said Pozner, who also scoffed at the idea of O'Neal testifying at Bryant's trial.

"There is about as much chance of Shaquille O'Neal being called in this as me being called to play for the Lakers," Pozner said.

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