By Charlie Brennan, Rocky Mountain News
August 12, 2004

Prosecutors on Wednesday asked for an indefinite delay in the Kobe Bryant sex assault trial, citing uncertainty about rulings they consider critical.

The prosecution, in seeking to scratch the Aug. 27 start date, also pointed to the recent release of portions of a June 21 "rape shield" hearing discussing DNA evidence.

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Many legal observers viewed the latest move as a first step toward an inevitable decision to shelve the case.

"It feels as though this is an exit strategy," said Dan Recht, past president of the Colorado Criminal Defense Bar. "They may well anticipate the judge will deny the motion to continue, and then they can say they had no choice but to dismiss the criminal case."

He was echoed by former Denver prosecutor Craig Silverman.

"It appears clear that the prosecution has now joined this well-orchestrated exit strategy from the criminal case," he said.

An attorney for the alleged victim did not return phone calls. Neither did lead defense attorney Pamela Mackey.

The prosecution's request came on the heels of Tuesday's filing of a civil lawsuit by Bryant's alleged victim at U.S. District Court in Denver.

That was widely interpreted by many as a sign that the 20-year-old woman has elected to drop her pursuit of justice in criminal court, in favor of civil court where a plaintiff's burden of proof is easier to satisfy.

Also Wednesday, Eagle District Attorney Mark Hurlbert's office said it is appealing last month's ruling by Chief District Judge Terry Ruckriegle permitting some evidence of the alleged victim's sexual history to be admitted at trial.

But the most dramatic development came in a two-page motion filed late Tuesday and made public Wednesday morning in which deputy district attorney Dana Easter claimed the prosecution has been harmed in its ability to prepare for Bryant's highly anticipated trial.

"The release of this (rape shield hearing) transcript so close in time to the trial date is extremely harmful to the People's case, particularly given the fact that the prosecution has been unable to respond" due to the gag order, Easter wrote.

She said prosecutors also were hampered by Ruckriegle's failure to rule on whether defense attorneys will be permitted to introduce evidence of the alleged victim's drug and alcohol use or mental health history. Preparing to counter that defense strategy, according to Easter, would require hiring three expert witnesses.

"The cost to the prosecution of engaging three experts and their presentation time is enormous," her motion stated. "These funds cannot be expended until the People have a ruling (on the admissibility of such evidence) from this Court."

Uncertainty about the potential of testimony on subjects Easter termed "extremely intrusive and personal to the victim" have "had a substantial impact on the victim's ability to anticipate and prepare her testimony for trial," the motion said.

Prosecutors did not receive 13 items of forensic evidence intended as defense exhibits until Aug. 3, noting that the deadline for exchange of such evidence was June 4, according to Easter.

"It feels like a desperate attempt to buy time on behalf of the prosecution," said Recht. "It seems as though the prosecution is reeling from the events of the last few days and needs to regroup and think about whether they want to proceed or dismiss the case."

Denver criminal defense attorney Craig Skinner gave the issues raised by the prosecution more credibility - but not much.

"Whether or not the judge is going to allow (the mental health and drug/alcohol evidence) is going to really color the case, and they need to know well in advance how these motions are going to be ruled on," said Skinner.

However, Skinner added that there are other interpretations of the move. "It would be a logical motion to file, if the prosecution felt that things were rapidly falling apart and they needed time to reconsider all of their options," he said.

The Bryant case has been in turmoil since Ruckriegle ruled on July 23 - to prosecutors' and victim advocates' dismay - that the defense will be allowed to introduce evidence relating to the alleged victim's sexual activities in a 72-hour period surrounding her June 30, 2003, encounter with Bryant at the Lodge & Spa at Cordillera.

Recht said he didn't expect Ruckriegle would be pleased by the latest prosecution strategy.

"He's going to be upset about the motion, because there's a lot of logistical work that goes into setting up a high-publicity trial like this, and a lot of it has been done already," said Recht.

"I believe he is going to deny the motion and hold the prosecution's feet to the fire."

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