Prosecutors should be punished over DNA order, they say

By Charlie Brennan, Rocky Mountain News
June 16, 2004

Kobe Bryant's lawyers are asking the judge in his case to reduce the charge against the Los Angeles Lakers star because of prosecutors' alleged failure to follow a court order relating to further DNA testing.

In a motion filed Friday but not made public until Tuesday, defense lawyer Pamela Mackey asked that prosecutors be punished by not being permitted to challenge defense experts' DNA test results at trial and that the charge against Bryant be reduced from a class-three felony to a class-four felony.

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Specifically, Bryant's lawyers want the "application of physical force or physical violence" language removed from the charge he faces.

If Bryant were to be convicted of a class-four felony sexual assault rather than the class-three felony, it would lower the minimum prison sentence Bryant might receive from four years to two years and could boost his chance for probation, rather than a prison sentence.

The dispute dates back to a prosecution decision in early May to conduct further DNA tests - at a private laboratory rather than the Colorado Bureau of Investigation - following notice from the defense as to what the defense expert's own DNA tests revealed.

At a closed-door hearing May 10, according to Bryant's lawyers, Chief District Judge Terry Ruckriegle ordered that those tests be performed at a laboratory that would permit a defense expert to witness the process.

Prosecutors settled on the Bode Technology Group in Springfield, Va., but discovered after the testing was scheduled that, while the firm allows defense experts to be present on its property during testing, it does not allow defense experts to monitor actual testing.

On June 3, Ruckriegle ordered prosecutors to explain why they had not complied with his orders relating to the retesting procedures.

In a June 8 prosecution reply, prosecutor Dana Easter filed a response that termed Ruckriegle's order about permitting a defense expert to witness the retesting a "suggestion that went short of an order."

Easter also argued the prosecution had no legal obligation to permit a defense expert to be present, as long as the tests in question weren't "consumptive," or, destructive, of the samples in question.

Former prosecutor Karen Steinhauser, now a professor at the Denver University College of Law, doubts Bryant will win a lessening of the charge against him.

"I have never seen that in terms of sanctions. That's not what the court is going to do, if the court imposes sanctions," Steinhauser said.

Will the prosecution be punished at all?

"I think it's going to depend on why the DA did not follow the court's order," Steinhauser said.

"The judge doesn't want to exclude evidence. No judge wants to exclude evidence that could be relevant evidence that goes to the truth-seeking function. So, that would be a last resort.

"But if the judge finds there was no legitimate reason for the DA to choose that lab, other than it was a totally willful violation of his order, I think it's possible."

Bryant pleaded not guilty in the case May 11. He is due back in Eagle County District Court for another pretrial motions hearing starting Monday.

brennanc@RockyMountainNews.com or 303-892-2742

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