High court calls for written reason for publishing ban

By Charlie Brennan, Rocky Mountain News
June 30, 2004

The Colorado Supreme Court on Tuesday ordered the judge in the Kobe Bryant case to explain in writing by noon Friday why reporters should not be permitted to publish contents of a transcript from a closed hearing that fell into their hands by accident.

A lawyer widely recognized as the nation's top authority on First Amendment law said he believes contents of that transcript - which documents a June 21-22 closed-door hearing concerning the sexual history of the alleged victim - ultimately will be published.

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"As a matter of law, I think the position of the media group is overwhelmingly strong," said Floyd Abrams, who was co-counsel to The New York Times in the Pentagon Papers case. He has argued more First Amendment cases before the U.S. Supreme Court than any lawyer in history.

"Material that, however inadvertently, finds its way into the hands of the press or public may be revealed by them at their will. I don't believe that a prior restraint on publication can possibly be deemed constitutional," Abrams said.

The Bryant sexual assault case, which marks its one-year anniversary today, took an odd turn last Thursday. Court reporter Michelle Goodbee accidentally sent the 206-page transcript of a hearing - conducted to help determine what part, if any, of the alleged victim's sexual history should be admissible at Bryant's upcoming trial - to seven news organizations.

She had intended to send the document, detailing a hearing held outside the presence of the media or public, to the trial judge, Chief District Judge Terry Ruckriegle.

Ruckriegle issued an order the same day telling those news organizations to delete or destroy their copies and not to report on their contents.

But Monday, the news groups appealed Ruckriegle's order to the state's highest court, arguing that it represented unlawful prior restraint of a free press.

On Tuesday, the Colorado Supreme Court instructed Ruckriegle to explain in writing by noon Friday why his order should not be vacated.

The controversy comes at a time when Ruckriegle was expected to rule soon - based on a series of "rape shield" hearings, including the one documented in the misdirected transcript - on whether Bryant's defense will be permitted to introduce any testimony at trial about the 20-year-old alleged victim's sexual history.

"One can understand the frustration of a judge, who was working hard to make a decision on a rape-shield issue, which is of extreme sensitivity," Abrams said.

"It's understandable that, for example, if the judge were going to say, 'I'm not going to allow this evidence in,' he would be appalled at the idea that it would be widely disseminated among people who may serve on the jury. It's a perfectly understandable effort by the judge to assure a fair trial. But it's simply unconstitutional."

The Bryant case now faces the potential of sensitive testimony, which Ruckriegle might well be poised to rule inadmissible, being widely published before jurors answer their summons at the start of jury selection in Eagle on Aug. 27.

But Abrams said he still believes Ruckriegle will be able to find 12 jurors who will not have been swayed by the potential publication of such material before trial.

"You'd be surprised how many people don't read the paper," Abrams said. "I remember, when they were picking a jury in the Watergate case, they found a whole jury - and then some - who never heard of Watergate."

brennanc@RockyMountainNews.com or 303-892-2742

Copyright 2004, Rocky Mountain News. All Rights Reserved.