Access to medical records at issue

By Charlie Brennan, Rocky Mountain News
December 20, 2003

EAGLE - A resolution to the hotly contested issue of defense access to the medical records of Kobe Bryant's alleged victim is still more than a month away, after a hearing Friday long on argument but short on answers.

District Judge Terry Ruckriegle told lawyers they came to court insufficiently armed with prior case law to help him balance the competing interests of the victim's privacy, the public's right to know and Bryant's right to a fair trial.

"No one addressed the issue of a standard for determining whether closure (of a hearing on her medical history) was appropriate," Ruckriegle said.

It is the position of Bryant's defense team that his alleged victim, a 19-year-old Eagle woman, waived her privilege of confidentiality on her medical records by discussing her condition with her mother and a number of friends.

That material is important, Bryant's lawyers contend, because it includes two attempted suicides in the four months preceding the alleged June 30 sexual assault, incidents they say were aimed at grabbing the attention of her ex-boyfriend.

The young woman's accusation against Bryant, stemming from an encounter at the Lodge & Spa at Cordillera in Edwards, where she was an employee and Bryant was a guest, was part of the same pattern of behavior, according to the defense.

Additionally, Bryant's lawyers say the alleged victim was recently taking an anti-psychotic medication that is approved for the treatment of schizophrenia.

The medical history, Bryant's lawyers argue, is central to establishing, or challenging, her credibility. Bryant has admitted committing adultery, but said his contact with the woman was consensual.

John Clune, an attorney representing the alleged victim - she was not present in court - wants any hearing on this issue to take place without the media and public present. Prosecutors take that same position.

Speaking at length on the young woman's behalf for the first time in these proceedings, Clune said intimate aspects of her life already have received excessive exposure.

"Every aspect of her life has been made public knowledge," said Clune. "This case has had tremendous coverage - one of the largest media exposures we've seen in the history of American jurisprudence."

Nevertheless, he said, "People really don't know my client very well, but she's a pretty strong individual, despite what everybody hears."

Most recently, it was widely reported that the young woman had spent some time at a rehabilitative facility in Arizona, partly in response to the intense media scrutiny on her and her family.

The "unnecessary humiliation and embarrassment to the victim is the reason you don't have more victims reporting sexual assault in the first place," Clune said.

But Tom Kelley, representing a consortium of 11 media organizations covering the Los Angeles Lakers star's case, argued that an evidentiary hearing on the medical privilege issue should occur in open court.

Pointing out that the heart of the woman's recent medical history is already public knowledge - the two alleged suicide attempts, the reports of anti-psychotic medication - Kelley said, "Once something is out, the right of privacy no longer attends."

But no one got the answer they were looking for - yet.

Ruckriegle told the lawyers to submit briefs and case law to help him resolve the issue, and it is unlikely he will do so before the next scheduled motions hearing in the case, set for Jan. 23.

"Basically, he said 'I'm a little disappointed that you haven't given me the case law that balances all three,' " said David Lugert, a former prosecutor now in private practice in Eagle.

"In effect, we're going sideways, if not backwards," said Lugert.

"I think the snow will be falling in the winter, or fall, of '04, before we have a trial in this case."

Bryant's lawyers had subpoenaed nine witnesses to the hearing, including the alleged victim's mother.

But those witnesses were released without taking the stand, their subpoenas continued to the Jan. 23 hearing.

At the end of the hearing in open court, however, Ruckriegle agreed to hear "offers of proof" from the defense, statements to the judge about the substance of what those witnesses will say, when and if they are eventually called.

Earlier in Friday's hearing, the prosecution and defense sparred over the issue of whether defense lawyers can be present when destructive testing, presumably for DNA, is conducted on evidence in the case. The prosecution's position is that defense lawyers can monitor only some aspects, but Bryant's lawyers believe they should witness the whole procedure.

Ruckriegle set the matter over for a later determination.

brennanc@RockyMountainNews.com or 303-892-2472

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