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The defense's case

October 22, 2003

  • She admits she flirted

    For the defense: Detective Winters acknowledges that the alleged victim expressed excitement about Bryant's arrival at the hotel and accepted an invitation to his room - the room she assigned him at the far end of a ground-floor hallway in the mostly empty hotel. Winters says that the woman admits flirting with Bryant, returning to his room by a purposely circuitous route and entering the room with a belief he might make advances.

    For the prosecution: That same detective says the alleged victim agreed to hug and kiss Bryant, but said "no" when Bryant went further. He says she told him she expressed a desire to leave and that Bryant placed his hands around her neck and prevented her from doing so.

    What it means: "I once co-authored a pamphlet called The Best Way to Protect Your Body is Using Your Head," said former Denver District Attorney Norm Early. "Clearly, she did not use her head in this situation."

    But, pointing out that the prosecution likely knew the same facts about the woman's actions leading up to the assault before the case was even filed, Early said, "There has to be some information that was not presented at the preliminary hearing that addresses those issues in a way that the prosecution feels will deal with them effectively."

  • Other semen and hair

    For the defense: Winters acknowledged that the alleged victim showed up for her physical examination the day after the incident wearing yellow-knit underwear stained with the semen of someone other than Bryant. Because the woman said a condom was used in a sexual encounter a few days earlier, it's unlikely that the sample stems from that encounter. It was revealed that other swabs taken from the alleged victim's body contained semen, and Caucasian hairs were also found. Their source is unknown.

    For the prosecution: The prosecution didn't produce testimony to show that significant attempts were made to identify the source of the forensic evidence not tied to Bryant.

    What it means: If Bryant's alleged victim had multiple partners near the time of the reported assault, that doesn't mean she wasn't raped. But, if such evidence is allowed at trial, that will make it more difficult to convince a jury that vaginal trauma that the prosecution attributes to forced penetration by Bryant could not have other explanations.

    "It's very speculative to say that consensual sex caused these injuries," said professor Steinhauser.

    "A person could have consensual sex every day for a long period of time, and that's not going to cause vaginal tear, bleeding, that type of thing.

    "The only thing that I think could be damaging to the prosecution case is if, in terms of the semen sample, if it's used to say that she had sex after the alleged sexual assault, there could be an argument that this goes to her state of mind - that obviously, she wasn't upset about it."

  • Post-attack eyewitnesses

    For the defense: Mackey's cross-examination of Winters revealed the existence of a witness who saw the alleged victim immediately after she returned from Bryant's room. That witness, the resort's night auditor, told investigators she saw no sign that the woman was upset.

    For the prosecution: Another eyewitness, Cordillera bellhop Bobby Pietrack, saw the alleged victim with Bryant before the incident took place and at its conclusion, and will testify that she recounted the alleged assault to him at that time. Pietrack's testimony should also bolster the prosecution's timeline, confirming that whatever happened in Bryant's room, it started and ended quickly.

    What it means: The value of a credible "initial outcry" witness, one who can testify to the alleged victim's demeanor or comments in the immediate wake of a reported assault, is significant. In this case, two co-workers saw her, but their stories don't mesh. "It's going to depend on the credibility of those witnesses," Steinhauser said. "I don't think that we can draw the conclusions on hearsay evidence. We need to wait and see the circumstances under which they saw her and observed her."

  • No marks on Bryant

    For the defense: There is no evidence of any marks on Bryant indicative of a physical struggle of any kind.

    For the prosecution: The alleged victim, about 9 inches shorter and 100 pounds lighter than Bryant, did not claim to have struggled or injured him in any way, saying only that intercourse ceased after she pulled Bryant's hand from around her neck.

    What it means: Evidence of a physical battle to defend oneself is not necessary to support a charge of rape, but it likely would have helped the prosecution's case.

    "In most of the acquaintance-rape cases that I prosecuted," Steinhauser said, "I'm not sure that I have ever seen injuries or marks on the defendant."


  • Absence of neck bruising

    For the defense: On cross-examination, Winters said he didn't see bruising around the alleged victim's neck, even though she says Bryant put both hands around her neck to prevent her from leaving his room and kept one hand there during the assault.

    For the prosecution: The alleged victim never claimed that Bryant held her very tightly, and said that the act was "more of a controlling nature."

    What it means: "That helps the defense, of course," said Recht. "She was saying she was held in such a hard manner that she wasn't free to move, and the defense will argue that that kind of control would lead to some kind of bruising.

    "It's very helpful to the defense that there was no bruising there. But it doesn't win the day. That's my bottom line."

  • Guests heard nothing

    For the defense: Although the room above Bryant's was occupied, and the people in that room had their windows open, they heard nothing unusual.

    For the prosecution: Investigators have never claimed that either the alleged victim or Bryant made noise that should have been audible to other guests.

    What it means: It's obviously a significant issue to Bryant's defense team. Steinhauser isn't so sure. "If she wasn't screaming for help, then one would not expect somebody to hear something," Steinhauser said.

    "But if she didn't scream for help, is that something the defense will try to use? I have found that when this has happened in other cases, the victims are in shock, they are scared, they are afraid for their own safety, and they will do what they feel like they have to do in order to survive, in order not to be hurt."


  • About the defense

    Bryant's defense team is led by Hal Haddon and Pamela Mackey, both members of the prestigious Denver firm of Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, P.C. Haddon is a highly respected criminal defense attorney whose firm represented John Ramsey throughout the early years of the JonBenet Ramsey murder investigation. Mackey was previously a public defender in Eagle County and represented former Colorado Avalanche goalie Patrick Roy in a domestic violence case. Terrence O'Connor, of Edwards, joined the team recently.

    Copyright 2003, Rocky Mountain News. All Rights Reserved.