Defense gets boost from judge's ruling sending case ahead

By Charlie Brennan, Rocky Mountain News
October 21, 2003

EAGLE - A judge on Monday ordered Los Angeles Lakers star Kobe Bryant to stand trial for sexual assault, a charge that could earn him up to life in prison upon conviction.

Eagle County Judge Frederick Gannett, who presided over a controversial and contentious two-part preliminary hearing, ruled late Monday that he found sufficient probable cause to send Bryant's case to a judge and jury at the district-court level.

Many legal observers expected that Gannett would decide as he did. But in his eight-page ruling, the judge added his voice to those who saw cracks in the prosecution's case.

Bryant, 25, a five-time NBA All-Star and one of the league's most popular young stars at the time of his arrest, is due to appear for arraignment in Eagle District Court on Nov. 10. He may enter a plea at that time.

Bryant's team, expected to contend for its fourth world championship in five years this season, is scheduled to play the Memphis Grizzlies that night in Tennessee.

In his ruling, Gannett said prosecutors presented "what can only be described as a minimal amount of evidence, relying substantially on the use of hearsay evidence, particularly on those elements of submission against will or application of force."

The judge emphasized that the law applying to preliminary hearings compels him to draw inferences about any evidence in the light most favorable to prosecutors.

Without that built-in advantage to the prosecution at this stage in the proceedings, Gannett's ruling stated, he otherwise "could not make a finding of probable cause" based on the evidence he has seen and heard so far.

"Almost all of the evidence introduced at the preliminary hearing," he ruled, "permits multiple inferences."

Defense attorneys Hal Haddon and Pamela Mackey released a statement expressing "disappointment" with Gannett's ruling, but drew attention to the critical tone it employed.

"Judge Gannett's decision does not change the fact that this case cannot be proven beyond a reasonable doubt, and should never have been filed," said Haddon's and Mackey's statement.

"When this case is tested by that standard, Kobe Bryant will be found innocent."

DA plays it close to the vest

Eagle County District Attorney Mark Hurlbert didn't make himself available for interviews Monday.

But he issued a statement, saying that he is "pleased with the judge's decision, although we had confidence all along in the case and presentation of evidence and we were therefore confident it would be bound over to District Court."

Prosecution spokeswoman Krista Flannigan said that Bryant's alleged victim is doing "as well as can be expected."

Denver criminal defense lawyer Craig Skinner considered Monday's ruling a shaky victory for prosecutors.

"I don't recall hearing a judge make statements like that before at the preliminary hearing stage," Skinner said. "They usually do not give a written opinion. They usually say, 'I find probable cause, get your calendars out.' "

With Gannett's strongly worded ruling, Skinner said, "It's as if he's saying they should deal the case out as quickly as possible, or they're going to lose it."

But Eagle County Sheriff Joseph Hoy, who sparked controversy by bypassing Hurlbert's office in securing Bryant's arrest warrant, took Gannett's decision as an endorsement of investigators' work on the case.

"I'm glad that the courts had as much confidence in my staff as I did," Hoy said.

The sheriff said he believes that his department's investigative work on the case is complete, but added, "I'm looking forward to working with the district attorney to ensure due process for those involved."

Bryant is accused of raping a 19-year-old woman who was working as a concierge at the posh Lodge & Spa at Cordillera in Edwards.

He checked in there June 30, the night of the incident, in anticipation of knee surgery scheduled for the following day at the Steadman Hawkins Clinic in Vail.

Two accounts differ sharply

Bryant's alleged victim claims he assaulted her after she accepted an invitation to his room at the Cordillera at the conclusion of her shift, gripping her by the neck after a few minutes of hugging and kissing, then forcibly penetrating her after he bent her over a chair.

The athlete admits to a sexual encounter with his alleged victim, but claims it was consensual.

Bryant surrendered to authorities July 4 on a class-three felony charge of forced sexual assault. He was released on $25,000 bond, and reported one day late at the start of this month to the Lakers' preseason training camp in Honolulu.

Many had expected that Bryant and his lawyers would exercise their right to waive a preliminary hearing, in part to prevent the specifics of the accusation against him to be disseminated through the national and even international media. In that case, Gannett would have immediately set the case for trial.

Bryant's lawyers argued, without success, that the preliminary hearing should be closed to the press and public.

Bryant's hearing went on as scheduled in open court Oct. 9, only to be brought to an abrupt halt late that afternoon when prosecutors objected to defense lawyer Mackey's question that suggested Bryant's alleged victim might have had sex three times in three days with three different men.

The hearing resumed last Wednesday, a day in which the defense exposed several potential problems for the prosecution.

Defense: 'We will prevail'

Principal among those was that Bryant's alleged victim told police she'd had consensual sex June 28, two days before the attack. She also told police a condom was used in that encounter.

Additionally, the young woman showed up for an examination the day after Bryant's alleged assault wearing yellow knit underwear - different from what she wore the night she saw Bryant - which contained sperm and semen that has not been linked to Bryant or anyone else.

The importance of that evidence to the defense is that prosecutors have photographs of vaginal trauma they believe is consistent with forced sexual penetration. Bryant's lawyers, however, argue that those injuries are also consistent with repeated consensual intercourse that occurred in close proximity to the time of the woman's encounter with the basketball star.

Cross-examination of the lead investigator, Sheriff's Detective Doug Winters, revealed that he'd expressed concern about whether the alleged victim had clearly told Bryant "no."

The statement released by Haddon and Mackey on Monday referred to their surprising decision to go through with the preliminary hearing. It stated, "Because Kobe Bryant is innocent, the prosecution's case simply had to be tested, despite the fact that the odds were against us prevailing.

"We will prevail at trial."

News staff writers Jeff Kass and Peggy Lowe contributed to this report. brennanc@RockyMountainNews.com or 303 892-2742

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