Ruling on alleged victim's sex activity puts trial in doubt

By Charlie Brennan, Rocky Mountain News
July 24, 2004

In a critical blow to the Kobe Bryant prosecution team, the trial judge ruled Friday that the alleged victim's sexual activity near the time of her reported assault will be admissible at his upcoming rape trial.

"This is a huge victory for the defense," said former Denver prosecutor Craig Silverman.

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He predicted it's possible that the order by Chief District Judge Terry Ruckriegle could convince Eagle County District Attorney Mark Hurlbert not to take the high-profile case to trial, which is scheduled to begin Aug. 27.

"They have established exceptions to Colorado's rape shield law," said Silverman. "If they can present credible evidence that this young lady had sex after Kobe Bryant, but before she went to the cops, then it is hard to see how the prosecution can possibly prevail."

He was also seconded by Dan Recht, past president of the Colorado Criminal Defense Bar.

"This is devastating for the prosecution," said Recht. "It will at least make them think about whether they want to go forward, or not."

Ruckriegle's order did not contain specific details of the sexual evidence that he is admitting, but included that information in a sealed order not made public.

No comment was available late Friday from John Clune, the attorney representing the alleged victim and her family.

As recently as Monday, Clune had talked passionately in court about the emotional toll the saga had taken on his young client, now 20.

Prosecution spokeswoman Krista Flannigan said no decisions have yet been made in the wake of Ruckriegle's decision.

"It's such a significant ruling, that we need the opportunity to carefully evaluate and make decisions about how we're going to proceed," Flannigan said.

As for the possibility of the case being dropped, she said, "That always is, I guess, whenever you're evaluating anything that happens. But I wouldn't play that up any more with this ruling, than I would any other ruling."

The current plan remains to continue with full preparations for trial. Nine hundred and ninety-nine jury summons were mailed out to Eagle County residents last week, for a trial expected to last at least three weeks, and perhaps significantly longer.

"We're still proceeding ahead, and we're anticipating jury selection on Aug. 27, as scheduled," Flannigan said.

Bryant's lawyers have claimed in pretrial oral arguments and filings that Bryant's alleged victim had three consensual sexual partners - including Bryant - in a 72-hour window prior to her examination at the Valley View Hospital in Glenwood Springs the afternoon of July 1, 2003.

One of those sexual liaisons, they have stated, occurred inside a 15-hour time span between her late-night June 30, 2003, encounter with Bryant at the Lodge & Spa at Cordillera, and her ensuing appointment with sexual assault nurse examiners.

That's critical to the case, according to the athlete's legal team, because microscopic vaginal injuries have been cited by prosecutors as evidence of forced penetration by the Los Angeles Lakers basketball star.

Defense attorneys counter that it is merely evidence of a high degree of sexual activity, and that any trauma could be attributed to other partners.

Bryant, 25, has admitted committing adultery with the Cordillera employee while in Colorado for a minor knee surgery - but that their contact was consensual.

Ruckriegle's anticipated seven-page ruling was one of the most critical decisions to the future of the case, and how it will unfold at trial, presuming there still is a trial.

At Bryant's preliminary hearing in October, it was revealed that the alleged victim had consensual sex with one friend, in which a condom was used, two days before her encounter with Bryant.

But the defense has also revealed that during her examination the following afternoon, underwear she was wearing - not the same undergarments worn when she was with Bryant - contained the semen and sperm of another man, not the athlete.

Also, defense lawyers have said that swabs used in her examination yielded another man's DNA from her inner thighs and vaginal area.

Because sperm does not live long outside the body, the defense has stated in court filings the possibility that the woman had sex after leaving Bryant, but in the intervening 15 hours before she first spoke to detectives.

"This means that any findings at the accuser's physical exam are not only disputable as to the type of sexual event that caused them, but are arguably unrelated to Kobe Bryant at all," Mackey had stated in an earlier case filing.

Clune released a prepared statement March 2 that refuted the notion of his client having consensual sex after her encounter with Bryant, claiming that, "Anyone trying to prove otherwise will be chasing ghosts."

But Recht painted grim prospects for prosecutors and for the alleged victim.

"Frankly, it's got to be devastating to the alleged victim, because now she and her sexual history are going to be on trial," said Recht.

He suggested a way in which Hurlbert - who is facing re-election this fall - could present such a tough decision to the public.

"They do have an out," said Recht. "They can say that given the court's ruling, the victim has decided she doesn't want to put herself through the trial process, and we're honoring her wishes and therefore dismissing the case. They could do that. I've seen it happen."

Some rape victim advocates didn't welcome Ruckriegle's ruling, but were muted in their criticism.

"I guess I would say that the purpose of rape shield laws are not to disallow evidence that might be relevant to a case," said Kathie Kramer, spokeswoman for the Denver-based Rape Assistance and Awareness Program.

"It apears Judge Ruckriegle believes that the alleged victim's sexual activity in those 72 hours might be relevant to this alleged assault," she added.

"There must be some evidence that leads him to believe that those 72 hours are relevant. There's probably things that we don't know about."

Ruckriegle's decision comes as the U.S. Supreme Court weighs an emergency appeal by media groups challenging Ruckriegle's June 24 order that reporters may not publish information contained in a 206-page transcript of a closed June 21-22 rape shield hearing. In that hearing, evidence was presented to help Ruckriegle reach his decision on the admissibility of the young woman's sexual history.

In a 4-3 decision announced Monday, the Colorado Supreme Court had ruled that Ruckriegle's order was a prior restraint on the press - but that it was justified by the need to protect the alleged victim's privacy rights.

That same ruling encouraged Ruckriegle to make his rape shield decision swiftly, and said that should he decide any part of the young woman's sexual history is admissible at trial - as he now, in fact, has - then he may release any portions of that transcript, which are "relevant and material" in the case.

But Ruckriegle's order of Friday was silent on the issue of the rape-shield transcript.

"I don't see anything in it that takes any part of the transcript out from under the prior restraint order, as the state Supreme Court instructed the judge to do," said Steven Zansberg, a Denver attorney specializing in First Amendment issues, representing the seven news organizations that were inadvertently e-mailed the transcript by court reporter Michelle Goodbee on June 24.

Twelve additional news organizations, including Scripps Newspapers Inc., owner of the Rocky Mountain News, filed a friend of the court brief Friday morning, joining the emergency petition already before Supreme Court Justice Stephen G. Breyer, asking to be freed of Ruckriegle's do-not- publish order.

Key decision in the Kobe Bryant case

The judge: Chief District Judge Terry Ruckriegle ruled Friday that the alleged victim's sexual activity near the time of her reported assault will be admissible at the trial, which is scheduled to begin at the end of August.

• The reaction:

"This is devastating for the prosecution. It will at least make them think about whether they want to go forward or not."

Dan Recht, past president of the Colorado Criminal Defense Bar

"It's such a significant ruling that we need the opportunity to carefully evaluate and make decisions about how we're going to proceed."

Krista Flannigan, prosecution spokeswoman

"There must be some evidence that leads him (Ruckriegle) to believe that those 72 hours are relevant. There's probably things that we don't know about."

Kathie Kramer, spokeswoman for the Rape Assistance and Awareness Program

Brennanc@RockyMountainNews.com or 303-892-2742

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