August 26, 2004

DNA hanky-panky?

That is what prosecutors are saying has taken place, as related in their most recent court filings in the Kobe Bryant case, made public Wednesday.

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Reacting to a previous court ruling that made three days in the life of Bryant's youthful accuser open season for "sex life" cross-examination, and mindful of the enormous impact that such testimony will have on jurors' perception of the young woman's character, prosecutors have struck back. It's an attempt to discredit the DNA labs for the defense whose findings paved the way for the unusual rape shield law evidentiary decision by Judge Terry Ruckriegle last month.

Launching a full-scale frontal attack on the defense experts themselves was really the only avenue that remained open to prosecutors, who desperately need to be able to discount, if not explain, why DNA from an unidentified "Mr. X" was found during the hospital examination of the young woman's body and deposited on two separate undergarments.

In publicly filed motions, prosecutors now claim that at least one of the "control" samples routinely used in DNA and other scientific experimentation to ensure accuracy shows evidence of contamination. On a far more mundane level, they assert that data from one of the DNA labs used by the defense were altered through the not-so-sophisticated use of ordinary "white-out."

Serious allegations indeed, which, if proven, will go a long way toward combating the defense theory that Bryant's accuser had an amorous liaison with another man after she left Bryant's hotel room but before going to authorities, a scenario that dooms the prosecution of Bryant to near-certain failure.

Prosecutors want yet another hearing to air their concerns about the DNA testing by the defense.

While the prosecutors declare otherwise, to the cynical there certainly is room for the lurking suspicion that this barrage of DNA-related motions is motivated by a desire for a continuance. Or, at the least, by a willingness to communicate to potential jurors, through the miracle of media coverage, skepticism about the defense DNA experts.

To be fair, prosecutors included in their DNA motions a letter written by defense counsel on DNA discovery issues, which tends to undercut all but a handful of the expansive claims now being made about the unreliability of the defense DNA labs.

Still, Ruckriegle has scheduled for today an initial hearing on the DNA issue, and one thing is for certain: He is not likely to express great pleasure at having the issue raised on the eve of trial.

Jury summonses have been sent out to 999 Eagle County residents, and with a historical return rate of approximately 50 percent, some 500 people will be arriving on Friday to begin filling out jury questionnaires for use by lawyers in jury selection beginning Monday.

The additional hearing envisioned by the prosecutors, which includes a demand that they first be provided the "DNA profiles" of every laboratory technician who worked on the Bryant case, presumably to compare to the DNA found on a control sample, would take weeks, not the few hours that remain before trial is scheduled to begin.

If nothing else, the flurry of pretrial motions filed this week by the prosecutors should finally convince just about everyone that the case is not going to be dismissed, but will proceed inexorably to trial, no matter what.

Which it will, no matter what.

Scott Robinson is a Denver trial lawyer specializing in personal injury and criminal defense.

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