January 23, 2004

If a hearing takes place in a highly publicized criminal case with the media excluded, does it still make a sound?

Chief Judge Terry Ruckriegle apparently hopes not, closing to the public today's hearing in the Kobe Bryant sexual assault case on whether Bryant's accuser has waived her privilege to keep her counseling and medical records secret.

Judge Ruckriegle ruled earlier this week that, upon balance, the right of the alleged victim not to have personal, sensitive and potentially embarrassing information about her made public takes precedence over the media's First Amendment right of access to court hearings in criminal cases.

At stake for the young woman and other claimed victims of sex assaults is the privacy interest that the law jealously guards in medical and rape counseling records, which in this case include the specifics of two widely reported suicide attempts and a stint in rehab.

Bryant's lawyers subpoenaed those records, arguing that the young woman sacrificed her right to confidentiality by talking freely about her problems with her family and erstwhile friends.

Judge Ruckriegle has already privately learned from a defense "offer of proof" what the witnesses may say, and has ruled that the defense has shown him enough to justify an evidentiary hearing.

That hearing will now be closed to the public, despite a plea from media lawyers that widespread press accounts revealing the young woman's psychological problems transformed her private life into the "public domain."

No doubt about it, Judge Ruckriegle was right to close the hearing, notwithstanding a seemingly insatiable salacious public appetite for all things Kobe.

The whole idea of privilege is to protect confidential communications, to encourage full disclosure between patient and treatment provider.

How fair is it to tell Bryant's teenage accuser that her whole life is now an open book, simply because of the loose tongues of so-called friends?

But this is not the only hearing that Judge Ruckriegle should close in this case: He should also hear the defense motion to suppress Kobe Bryant's initial statements to sheriff's office investigators behind closed doors.

Not because of privilege or precedent, but practical reality. Since Bryant's statements have little chance of coming in at trial, public dissemination of what he said would not only be unfair to Bryant, it would make picking a jury all the more difficult.

Bryant talked to sheriff's detectives in his hotel room for about 75 minutes beginning just after midnight on July 2, a little more than 24 hours after the alleged assault. The officers were supposedly there to transport Bryant to a medical facility to obtain "non-testimonial identification" samples, such as hair and bodily fluids.

While the officers appropriately obtained a warrant for non-testimonial identification procedures from a judge before approaching Bryant, almost nothing else that they did was legal.

By law, the warrant could not be served at night, the officers were not permitted to question Bryant, and they were required to take him to the hospital and then bring him back as expeditiously as possible.

Despite this, and without even bothering to read Bryant his Miranda rights, the officers kept Bryant in his room for over an hour, and questioned him at length about the sexual encounter.

However well meaning, the officers completely ignored the law, and suppression is a near-certainty under a dispositive 1988 Colorado Supreme Court case, People v. Antonio Harris, which explicitly prohibits exploitation of a non-testimonial identification warrant for suspect interrogation.

Thus, while the factual circumstances surrounding the questioning itself can and should be heard in open court, it would be patently unfair to reveal what Bryant said in a public forum, since it is all but inevitable that those statements will never see the light of day at trial.

While inquiring minds everywhere are doubtless dying to know the gory details of the alleged victim's psychological problems, and just what Kobe Bryant said to the investigating officers, sometimes the public's "right to know" just has to get in line.

Behind privacy privileges and the due process right to a fair trial.

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

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