Bryant case hearing to be made partially public; media reps say it's 'no victory'

By Peggy Lowe, Rocky Mountain News
July 28, 2004

The Kobe Bryant trial judge prepared Tuesday to lift a media gag order by releasing an edited version of a transcript from a hearing on the Colorado rape victims' privacy law.

Dodging a press freedom fight and doggedly following orders from a U.S. Supreme Court justice, Eagle County Judge Terry Ruckriegle ordered prosecutors and Bryant's attorneys to draft a redacted version of the transcript that a clerk had mistakenly sent to seven news organizations.

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Ruckriegle posted his ruling just 12 hours after U.S. Supreme Court Justice Stephen G. Breyer told him to release the transcript - either in its entirety or in a partial state - or face another legal appeal from the media.

The release, which could come today, would settle one of the skirmishes in the First Amendment v. victims' rights fight that has been waged since the error occurred June 24. That same day, Ruckriegle barred the media from publishing or broadcasting the contents of the transcripts.

The larger battle, said legal scholars of press freedoms, is still not over.

"It will certainly be no victory of the press if the final result here is if a redacted version of the document be made public," said Floyd Abrams, the First Amendment specialist who represented The New York Times in the Pentagon Papers case.

"The argument in favor of the media entities was not that some portions might eventually be made public anyway and thus there was no harm," he said.

"The argument is that under the First Amendment they have the right to decide for themselves what portions of the transcripts - that they lawfully obtained - they will publish."

But an advocate for rape victims said release of the transcripts will hurt the alleged victim's right to privacy.

"We know that privacy is important to victims. Let's face it, it's important to all of us," said Kathie Kramer of Denver's Rape Assistance and Awareness Program.

"So we hope that as little of this intimate and private information as possible is released to the media and the public."

The seven groups who received the erroneous e-mail have not published reports of the hearing, but appealed Ruckriegle's decision to the Colorado Supreme Court. The state high court sided with Ruckriegle, saying a victim's privacy rights trump the First Amendment.

Media attorneys have argued that the hearing actually wasn't about what the high court called "the victim's most intimate life history."

"The hearing did not involve evidence about multiple, past sexual encounters or testimony from any previous sexual partners," the attorneys wrote in a July 21 brief. "Rather, the portion of the hearing that concerned rape shield matters was almost entirely dedicated to legal argument and one expert witness's testimony concerning a single defense theory about a single alleged sexual encounter."

The transcript is believed to center on the defense team's suggestion that Bryant's alleged victim had sex with another man within 15 hours of her encounter with Bryant at a ritzy Eagle County resort on June 30, 2003. That would explain the vaginal injuries she claims to have suffered, the lawyers say.

Elizabeth A. Johnson, a DNA expert and a private consultant in California, testified that day for the Bryant team and her testimony is reportedly in the transcripts.

Late Monday, Breyer denied the media's emergency appeal to the high court, but told Ruckriegle he could "perhaps avoid the controversy at issue here" if he took two days to release a version of the document.

Breyer made his decision after Ruckriegle already had ordered last week that the young woman's sexual activities around the Bryant encounter could be revealed to the trial jury.

Breyer ducked the minefield of the competing constitutional issues, said Jane Kirtley, a University of Minnesota media ethics and law professor.

"It's an argument of pure principle, and the principle is, courts are not editors and they do not have the right to stop the press from publishing information that they have legally obtained," Kirtley said.

What's next

• Transcript: Documents that may include testimony about a sexual encounter the alleged victim may have had 15 hours after having sex with Bryant could be released today.

• Trial: Jury selection is set to begin Aug. 27.

lowep@RockyMountainNews.com or 303-892-5482

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