Ed Andrieski © AP Kobe Bryant, center, walks out of court Monday escorted by security while Bryant's attorney, Pamela Mackey, right, looks out the door. They were taking a break from afternoon court proceedings in Eagle, where Bryant is accused of sexually assaulting a 19-year-old hotel employee.

Bryant defense says woman was active within 15 hours

By Charlie Brennan, Rocky Mountain News
March 2, 2004

EAGLE - Kobe Bryant's alleged victim had sex less than 15 hours after her encounter with the Los Angeles Lakers star, according to a defense brief filed Monday.

Also, she has had sexual relations with two prosecution witnesses, defense attorney Pamela Mackey claimed in the same legal filing.

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Those defense allegations - which even if true, will not necessarily be admissible at Bryant's trial under the state's rape shield law - caused immediate shock waves Monday in Eagle District Court.

"If this woman really had sex with somebody between the time she was with Kobe Bryant and the time that she went to the cops, any reasonable person would have to rethink the charge of rape," said former Denver prosecutor and legal analyst Craig Silverman.

"If that's true, it's over," said former Denver District Attorney Norm Early, who attended Monday's pretrial motions hearing in Bryant's sexual assault case.

"How are you going to prosecute an assault case where someone is having sex 15 hours later?" he asked. "It's going to be very difficult."

But Cynthia Stone, a spokeswoman for the Colorado Coalition Against Sexual Assault, wasn't so sure.

"Even if this stuff is brought in and allowed as evidence, that doesn't mean it's fact," said Stone. "It only means that it can be put to the jury, for the jury to decide if it's important."

She acknowledged that consensual sex 15 hours after rape isn't conduct that most people would consider normal, but added, "Each individual victim of sexual assault is going to deal with things in a different way."

According to defense filings and testimony at Bryant's preliminary hearing in October, the 19-year-old woman had sexual intercourse:

• On June 28, consensually, and that her partner used a condom, according to the lead detective testified at preliminary hearing.

• On June 30, with Kobe Bryant; she said it was forced; he said it was consensual.

• Showed up for her "rape kit" examination, the afternoon off July 1, wearing yellow underwear with another man's semen and sperm. The defense claims it is evidence of a sexual partner after Bryant, and before she went to police.

"Evidence that the accuser engaged in sexual intercourse within the two days preceding and within less than 15 hours following her encounter with Mr. Bryant is relevant and admissible," Mackey argued.

The prosecution has not yet offered an explanation for the semen in the underwear July 1, but agrees that it's not Bryant's.

Noting that expert witness lists reveal that prosecutors aim to cast the woman as a victim of trauma and post-traumatic stress disorder, Mackey stated, "Given the timing and nature of the accused's sexual activity following her encounter with Mr. Bryant, all of this activity is now also relevant to test and rebut the prosecution experts' opinions regarding the supposed trauma and PTSD."

Denver defense attorney Craig Skinner, a legal expert who's following the case closely, said the latest defense motion was "an important moment" in the case.

"I think this is one of those times when they (the prosecution) have to sit down and reassess their case," said Skinner.

Saying that the allegations in Mackey's motion go directly to the alleged victim's credibility, Skinner said, "Prosecutors have to look at how a jury is going to digest that information, and how it's going to affect her credibility. I know that they don't want to go through a series of losing battles over the next four months and then lose the trial, too."

Silverman agreed, saying, "I don't know how much more of this they can take."

Kobe Bryant's alleged victim was to be flying in from out of state and sharing the same small courtroom with Bryant today, testifying under defense subpoena as one of at least two dozen witnesses to establish the relevance - or lack of relevance - of her sexual history. It would have been her first confrontation with Bryant since their June 30 meeting at the Lodge & Spa at Cordillera in nearby Edwards, where he was a guest and she was an employee.

But as a result in a scheduling change announced late Monday afternoon by Colorado Judicial Branch spokeswoman Karen Salaz, the alleged victim will not be among today's witnesses, after all.

The hearing on the relevance of her sexual history is still expected to begin today, but it's likely to be continued to the next hearing, set for March 24 and 25; it's possible the alleged victim might testify at that time, instead.

One factor in the scheduling change is that prosecutors want to continue fighting one battle they lost Monday morning.

State District Judge Terry Ruckriegle, following arguments and testimony in open court, denied prosecutors' bid to limit defense questioning of the alleged victim, a 19-year-old Eagle woman. He said they filed the motion too late. But late Monday, Salaz said Ruckriegle agreed to reconsider.

The entirety of Monday afternoon's hearing was given over to two issues on which arguments and testimony were initiated early last month.

One was the defense bid to introduce evidence concerning the alleged victim's medical history. The final witnesses on that question were heard behind closed doors Monday afternoon.

The other issue returned to Monday also outside the presence of the press and public, but not completed, was the defense team's motion to suppress Bryant's secretly recorded initial statements to investigators.

Copyright 2004, Rocky Mountain News. All Rights Reserved.