Two acquaintances of Bryant's accuser split on providing it

By Charlie Brennan, Rocky Mountain News
May 28, 2004

EAGLE - One key witness in the Kobe Bryant sexual-assault case has agreed to a defense request for a DNA sample, while a second is refusing to provide one.

The request from Bryant's lawyers for the genetic profiles of two young male friends of his alleged victim was made in an effort to learn the origin of DNA recovered from the young woman's underwear and on vaginal swabs. That DNA comes from someone other than the Los Angeles Lakers star.

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Bryant said he had consensual sex with his alleged victim and that vaginal injuries the prosecution blames on forced penetration by Bryant are actually the result of the young woman having multiple sexual partners in a 72-hour period around the time of her June 30 encounter with the athlete.

In a pretrial hearing Thursday, Eagle County District Attorney Mark Hurlbert said Bobby Pietrack, a bellman at the Lodge & Spa at Cordillera on June 30, the night of the alleged assault, has agreed to the request and that his DNA will soon be in the hands of the Colorado Bureau of Investigation and the defense.

Pietrack is the first person the 19-year-old woman told about her encounter with Bryant.

The second person whose DNA is targeted by the defense is Matthew Herr, an ex-boyfriend of the 19-year-old Eagle woman.

Herr's lawyer, Keith Tooley, argued against the defense bid.

"We are talking about a 19-year-old young man who has been subject to five subpoenas, and two times has been up on this witness stand (in previous hearings) talking about intimate details of his personal life," Tooley said. "At some point, enough is enough."

Hurlbert agreed that the defense's request of Herr is out of line.

"As a public servant, this really turns my stomach," Hurlbert said. "This is such a fundamental violation of a witness' privacy."

The source of DNA recovered from the alleged victim is a central concern to the defense team.

The DNA samples, defense lawyer Hal Haddon said in court, are necessary to determine "whether certain witnesses are testifying truthfully, under oath, in these proceedings."

Tooley countered, "Mr. Haddon suggests that my client wasn't truthful. I don't know what audience he's playing to when he makes that comment. It's not so."

Also, Tooley said, "Whether my client had consensual sex or not with the victim can't matter. Whether she said yes or she said no (to Bryant), my client's DNA cannot shed any light on that question."

Chief District Judge Terry Ruckriegle did not rule Thursday about whether Herr must provide his DNA, but he did grant the defense a partial victory on another evidentiary issue also relating to Herr.

Fight over text messages The defense has subpoenaed AT&T Wireless text-messaging records for conversations on the night of June 30 and the early morning hours of July 1 between Herr and the alleged victim and between Herr and another girlfriend.

Haddon said one message was exchanged between Herr and the alleged victim at 2:41 a.m. July 30, less than three hours after she left Bryant's room at the Lodge & Spa at Cordillera.

Tooley argued that the federal Electronic Communications Privacy Act made

Herr's text messages off-limits to the defense.

"Mr. Bryant is a wealthy man. He is a superstar. But he's no more important than Matthew Herr," said Tooley, who added that he doesn't know the content of the text messages.

Haddon argued that the messages sought by the defense could refute key testimony that either the alleged victim, or Herr, might offer about the events of June 30, and that their possible bearing on Bryant's criminal case therefore outweighed Herr's privacy rights.

Haddon buttressed his argument by citing the 1974 U.S. Supreme Court decision in U.S. v. Nixon, in which the nation's highest court ruled that President Richard Nixon's claim of presidential privilege wasn't enough to override a grand jury subpoena for his tapes relating to the Watergate break-in investigation.

"It's a pretty powerful precedent," Haddon said.

Ruckriegle ruled that Herr's text messages could indeed be "highly relevant" and ordered they be submitted to him under seal, so that he can review them in private and determine whether they should be admissible as evidence.

Thursday was a rough day in court for the prosecution.

Stating that Hurlbert's failure to answer one defense motion "underscores the problem" the judge faces in setting a trial date - he again declined to do so Thursday - Ruckriegle said, "I'm trying to help you guys move this along, and I give you deadlines because I find that when I don't give you deadlines, things don't get accomplished."

At issue was a defense bid to block the testimony of two experts Hurlbert hopes to use at trial as rebuttal witnesses - forensic experts Dr. Henry Lee and Dr. Michael Baden. Although Ruckriegle had ordered the prosecution's argument on the issue to be submitted by May 21, it hadn't been turned in by Thursday.

Ruckriegle reluctantly gave prosecutors until June 14 to provide Bryant's lawyers with detailed reports on the expected testimony of Lee and Baden, leaving their status as potential witnesses in limbo for now.

"I am beyond asking. I am telling you, if you want to still call these witnesses, you need to submit a summary report with some specificity" about how they would testify, Ruckriegle told Hurlbert.

The parents of Bryant's alleged victim had a ringside seat for Ruckriegle's dressing-down of Hurlbert. They were seated in the front row of the courtroom, directly behind the prosecution table.

Lawyers have turned the tables

Denver defense lawyer Lisa Wayne, who attended Thursday's hearing, said Bryant's lawyers have turned the tables "completely" by putting Hurlbert's team in a defensive posture.

"They (the prosecution team) appear to have lost their composure," she said. "Lose your composure and your credibility, and there's a downward slide there."

While Bryant is still without a date for the start of his trial, Ruckriegle is pushing toward setting a date with every decision he makes.

For example, Hurlbert told the judge Thursday that the prosecution wants to retest some DNA samples, which have already been processed once by the Colorado Bureau of Investigation, and that he intends to use a private laboratory to do so.

Hurlbert told the judge that retesting could either take five or six weeks - or 10 days at about a 50 percent greater cost to taxpayers. Ruckriegle ordered that it be done on the faster and more expensive timeline.

Thursday's hearing concluded at 2:10 p.m., leaving plenty of time for Bryant to board a private jet and return to Los Angeles for Game 4 of the Lakers' Western Conference Finals series versus the Minnesota Timberwolves.

What's next

•Bryant returns to Eagle County District Court on June 21 for another pretrial hearing, which could last a week.

•Another three-day pretrial hearing is scheduled tostart July 19.

Copyright 2004, Rocky Mountain News. All Rights Reserved.