By Rocky Mountain News
August 26, 2004

Alleged victim's blood on T-shirt

For the prosecution: Faint streaks of the alleged victim's blood on the lower inside front of Bryant's T-shirt.

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For the defense: The defense established that the blood was so minimal that detectives didn't notice it at first, when Bryant voluntarily turned over the clothes he wore the night of the alleged assault.

What it means: "That is a piece of evidence the prosecution will rely on heavily," said Larry Pozner, past president of the National Association of Criminal Defense Lawyers.

Dan Recht, past president of the Colorado Criminal Defense Bar, said, "It's the best thing they've got. Limited as it may be, they have evidence of physical trauma that supports her allegation that she was forced to have sex against her will."

Bryant's taped statement

For the prosecution: The public has not heard the audiotape of Bryant's first comments to investigators, captured by a recording device hidden in the breast pocket of Eagle County Sheriff's Detective Dan Loya when he and partner Detective Doug Winters first spoke to Bryant in the early morning hours of July 2, 2003, at the Lodge & Spa at Cordillera, little more than 24 hours after the alleged assault.

For the defense: Bryant's team has termed the tape barely audible, complained about the "surreptitious" manner in which it was obtained and fought an unsuccessful battle to have it ruled inadmissible on constitutional grounds because Bryant had not been read his rights, despite the fact that he was — in their opinion — in custody at the time.

What it means: Both sides have retained audio experts to help interpret the conversation captured on the tape. And Eagle County Judge Frederick Gannett, in his Oct. 20 order binding the case over for trial, noted that the tape "pertains only to two specific facts ... which offer corroboration (to the state's case) only when viewed in the light most favorable" to prosecutors.

"That tells me, don't expect the statement to be that important to the prosecution, because he (Gannett) refers to it in a way that makes it clear it isn't," said Pozner.

The woman's resistance

For the prosecution: The alleged victim told police that she said "no" at least twice during the encounter, was crying during intercourse and that Bryant forced her to turn her head and face him, as she promised not to tell anyone. One small bruise was found on her left jaw.

For the defense: ective ters, under cross-examination, admitted he was concerned after hearing the woman's statement that she did not say "no" more clearly or forcefully. He also conceded that when the woman pulled Bryant's hand away from her throat, Bryant immediately ceased intercourse. Also, the detective said he didn't notice the bruise when he first met with the woman the day after the incident. It was noticed only later that day as she was being examined by nurses.

What it means: The question of consent is critical in a case where both sides agree that a sex act took place. A jury's verdict could well be swayed by its perceptions of the woman's level of resistance.

"Resistance is not required to prove a non-consensual assault," said Karen Steinhauser, a former Denver prosecutor and now a professor at the University of Denver College of Law. "You just have to show that she said no. We're going to have to hear from her. It's going to be up to the jurors to decide, is she credible?"

Vaginal injuries

For the prosecution: The prosecution will present photographs taken the day after the assault during the young woman's examination, which show numerous small lacerations near her vagina. This, the nurses say, is consistent with forced sexual penetration in the previous 24 hours.

For the defense: Defense lawyer Pamela Mackey established at Bryant's preliminary hearing that the woman admitted to having sexual intercourse with someone else two days before the alleged assault. The defense will advance the theory that the injuries are consistent with her having multiple, consensual sexual partners in a short period of time.

What it means: The significance of these small injuries will depend largely on how effectively they are presented in a trial, through the testimony of expert witnesses for both sides. Their persuasiveness with jurors will be critical.

Pozner points out that the trauma is concentrated in the area of the fourchette, a fold of skin at the posterior of the vulva.

"Technically, that's an important issue," Pozner said. "There is medical literature that discusses that this area of skin is thinner in some women than other women, and that multiple acts of sex in a short period of time can cause bleeding of that area in some women.

"What the prosecution wants to portray is that there is a tear in the vaginal opening, this horrific picture of force that is 100 percent off base, and they know it. What, really, you have here, is no tearing, but tiny, tiny hemorrhages, in an area of skin known to bleed through consensual intercourse."

Blood in the underwear

For the prosecution: Testimony at Bryant's preliminary hearing, and the transcript of a closed June 22 pretrial hearing concerning the alleged victim's sexual history which became public Aug. 2 after it was inadvertently released to seven news organizations, shows that the alleged victim's blood was found in the purple underwear she wore the night of the incident, and in the yellow underwear she wore the next day to her examination following her encounter with Bryant.

For the defense: The defense will argue that the presence of the victim's blood is indicative not of trauma resulting from forced penetration by Bryant, but by trauma resulting from the woman having intercourse several times — including her encounter with Bryant, which he said was consensual — in a short period of time.

What it means: The gynecological injuries, although not overpowering, certainly shape up as the best piece of evidence for the prosecutors — which tells you how much trouble the prosecution is in," said Denver defense attorney and legal analyst Scott Robinson. "They are pretty modest injuries; granted, they're not my injuries. But it's not overwhelming evidence of forcible trauma."

A September surprise?

For the prosecution: Prosecutors were not required to put on anything approaching their entire case at Bryant's preliminary hearing, held in two parts Oct. 9 and Oct. 15.

All the law required of prosecutors is that they present enough evidence to convince Judge Gannett that probable cause existed to send the case to trial. Gannett ruled they had done so — but barely. He noted that he'd seen "what can only be described as a minimal amount of evidence," which the law required him to read in the light most favorable to the state.

It could be that the prosecution holds evidence that the public will hear for the first time when it is unveiled at trial.

For the defense: A surprise to the public won't be a surprise to the defense, however. Rules of discovery require that the prosecution share its case with the defense during pretrial proceedings.

What it means: Time will tell. But don't bet that there are any Perry Mason-caliber surprises up prosecutors' sleeves.

"I don't believe the prosecution has any overwhelming evidence of guilt that we don't yet know about," said Recht. "The prosecution was nervous at the preliminary hearing, and would have presented some strong piece of evidence if they had it."

The DNA of Mr. X

For the defense: Winters acknowledged that the alleged victim showed up for her physical examination the day after the incident wearing yellow-knit underwear stained with the semen and sperm of someone other than Bryant. Because the woman said a condom was used in a sexual encounter a few days earlier, it's unlikely that the sample stems from that encounter.

It has also been revealed that other swabs taken from the alleged victim's body contained semen and sperm not linked to Bryant. The defense has dubbed the donor of that sample "Mr. X," and will argue that she had sex with someone in the 15 hours between being with Bryant and submitting to a physical exam as part of the investigation.

For the prosecution: A transcript of the June 22 pretrial hearing at which testimony was offered on this evidence shows that the prosecution will argue the semen stain in the yellow underwear was at least several days old, and could have become moistened — perhaps through perspiration — and then transferred onto her skin.

What it means: If Bryant's alleged victim had multiple partners near the time of the reported assault, that doesn't mean she wasn't raped. But, now that Ruckriegle is allowing this evidence at trial, that could make it more difficult to convince a jury that vaginal trauma the prosecution attributes to forced penetration by Bryant could not have other explanations. Also, the defense will likely present testimony from a rape trauma expert to testify that immediately seeking a consensual sex partner so soon after being assaulted is inconsistent with having been victimized.

"The defense doesn't have to prove anything. They simply have to create a doubt in the jury's mind as to how that semen got there," said Recht.

"Whether it was before or after the sex with Kobe Bryant, and whether or not someone else inflicted the minor injuries that she had, the point is that if a jury just doesn't know, if the defense creates a doubt with this evidence of another man's semen, the prosecution loses. And the jury says 'not guilty.'"

The victim's own statement

For the defense: Detective Winters acknowledged that the alleged victim expressed excitement about Bryant's arrival at the hotel and accepted a late-night invitation to his room — the room that she had assigned him at the far end of a ground-floor hallway in the mostly empty hotel. Winters said that the woman admitted flirting with Bryant, returning to his room by a circuitous route and entering the room with a belief he might make advances.

For the prosecution: That same detective said the alleged victim agreed to hug and kiss Bryant, but said "no" when Bryant went further. Winters said she told him she expressed a desire to leave and that Bryant placed his hands around her neck and prevented her from doing so.

What it means: "I once co-authored a pamphlet called The Best Way to Protect Your Body is Using Your Head, said former Denver District Attorney Norm Early. "Clearly, she did not use her head in this situation."

Pozner said, "Her story is one of the best things the defense has; all the things she did to get close to Kobe — putting Kobe in a remote room; taking a circuitous route through the kitchen to get to his room in violation of all the rules; saying 'I knew if I went in, he was going to come on to me.'"

According to Pozner, the day during Bryant's preliminary hearing when the alleged victim's actions leading up to the incident were revealed was "a massacre" for the prosecution.

Post-attack eyewitnesses

For the defense: Mackey's cross-examination of Winters at the preliminary hearing revealed the existence of a witness who saw the alleged victim immediately after she returned from Bryant's room. That witness, the resort's night auditor, told investigators she saw no sign that the young woman was upset.

For the prosecution: Another eyewitness, Cordillera bellhop Bobby Pietrack, saw the alleged victim with Bryant before the incident took place and at its conclusion and said that she was upset, and he will testify that she recounted the alleged assault to him at that time. Pietrack's testimony should also bolster the prosecution's timeline, confirming that whatever happened in Bryant's room, it started and ended quickly.

What it means: The value of a credible "initial outcry" witness, one who can testify to the alleged victim's demeanor or comments in the immediate wake of a reported assault, is significant. In this case, two co-workers saw her, but their stories don't mesh.

Also, in pretrial motions the defense has alleged that the alleged victim has slept with two prosecution witnesses. The fact that they requested a DNA sample from Pietrack (he complied, while a second acquaintance of the woman refused), indicates a defense belief that Pietrack might be one of her sexual partners. This could undermine his credibility in the eyes of jurors.

The night auditor, Pozner said, is a problem for the prosecution.

"There's (typically) never a witness like the night auditor," he said. "There is usually an outcry witness for the prosecution, but nobody to rebut it."

No neck bruising

For the defense: On cross-examination, Winters said he didn't see bruising around the alleged victim's neck, even though she says Bryant put both of his hands around her neck to prevent her from leaving his room and kept one hand there during the assault.

For the prosecution: The alleged victim never claimed that Bryant held her extremely tight, and said that his physical action was "more of a controlling nature."

What it means: As with most evidence, it's the jurors' opinions that count.

"In my experience, in hundreds of sex assault cases that I saw, very rarely did we have physical evidence of bruises or any other kind of injury," said Steinhauser.

Recht said, "It's very helpful to the defense that there was no bruising there. But it doesn't win the day. That's my bottom line."

No marks on Bryant

For the defense: There is no evidence of any marks on Bryant indicative of a physical struggle of any kind.

For the prosecution: The alleged victim, about 9 inches shorter and 100 pounds lighter and far less strong than the athlete, did not claim to have struggled or injured him in any way, saying only that intercourse ceased after she pulled Bryant's hand from around her neck.

What it means: Evidence of a physical battle to defend oneself is not necessary to support a charge of rape, but it's possible that it would have helped the prosecution's case.

However, its absence is not necessarily a strike against the prosecution, said Steinhauser.

Sometimes, she said, a victim might think, "'If I fight more, is he going to hurt me?' And so what you see is decisions being made like, 'I'm terrified. I'm not going to fight anymore, and maybe he'll let me go.' So, it's just not a typical case, where you see physical injuries."

Text messages

For the defense: The defense won access to a series of AT&T Wireless text messages between the alleged victim and her ex-boyfriend, Matt Herr, that passed between them in the days following the alleged assault. The content of the messages is not known, so their effect on the case is difficult to gauge. But if their content is in any way at odds with the version of events the young woman gave authorities, they could be damaging.

For the prosecution: A filing in the case by an attorney for Herr said that only one message passed between the two in the 24 hours after the incident, and that was from Herr, to the young woman, at 3:51 p.m. July 1.

What it means: Local legal observers can't recall text messages becoming part of a criminal trial in Colorado, but it could soon become as common as seeing cell-phone records and e-mails introduced as evidence.

"It doesn't sound like it's a whole hill of beans," said Robinson.

Robinson added, "Short of her having text-messaged somebody else to the effect 'Oh hey, I just made it with Kobe Bryant,' it's hard to see how it's going to be significant."

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