By Peggy Lowe, Rocky Mountain News
July 27, 2004

U.S. Supreme Court Justice Stephen G. Breyer late Monday night denied the media's emergency appeal to publish sealed transcripts in the Kobe Bryant case that had been mistakenly released.

Still, Breyer wrote in a four-page ruling that he was offering the state court a two-day "brief delay" that will let it clarify or even avoid the controversy that pitted the media's First Amendment rights against an alleged victim's privacy rights.

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Eagle County Judge Terry Ruckriegle, who ordered the transcripts sealed on June 24 after a court reporter erroneously e-mailed them to seven media outlets, may decide to release the transcripts in their entirety or to release just edited portions, Breyer wrote.

"Their release, I believe, is imminent," the justice wrote.

Media lawyer Chris Beall wouldn't comment Monday night, saying he hadn't yet talked to his clients. State Attorney General Ken Salazar, who represented Ruckriegle, made a terse statement.

"The issue is back in Judge Ruckriegle's hands and that's all we'll say," said Ken Lane, a spokesman for Salazar.

Whether media outlets will publish the transcripts - or soon receive them from Ruckriegle - could be determined today because the decision was released so late Monday.

"We have no immediate plans to publish it," said George Garties, Denver bureau chief of the Associated Press.

Transcripts of the June 21-22 rape shield hearings in the Bryant case were accidentally e-mailed to The Associated Press, CBS, the Denver Post, ESPN, Fox, the Los Angeles Times and Warner Brothers.

The Rocky Mountain News did not receive the transcripts, but was one of 12 news organizations that filed friend-of-the-court briefs.

Media attorneys made the emergency petition to the U.S. Supreme Court last week after the Colorado Supreme Court ruled 4-3 to uphold Ruckriegle's do-not-publish order that came after the clerk's mistake.

The transcripts focused on the state's rape-shield law, which says a victim's sexual history is irrelevant unless lawyers can show in closed, pretrial hearings that there is a reason it should be admissible.

The state high court said a victim's sexual conduct is even more private than her identity, and that the state has a vital interest in protecting the privacy of rape victims in order to encourage the reporting of rapes and to deter rapes.

But the court encouraged Ruckriegle to quickly make his decision on the rape shield law, and he did on Friday. He ruled that the alleged victim's sexual activity in a 72-hour time around her encounter with Bryant was admissible at Bryant's trial, which begins Aug. 27.

Because of that ruling, Breyer allowed Ruckriegle two days to determine just how he would release the transcripts, and the media might refile its appeal after that.

"My reading of the transcripts leads me to believe that the trial court's determination as to the relevancy of the rape shield material will significantly change the circumstances that have led to this application," Breyer wrote.

Copyright 2004, Rocky Mountain News. All Rights Reserved.