Once-sealed order reveals problems with DA's case

By Charlie Brennan, Rocky Mountain News
November 6, 2004

On the first day of jury selection in the Kobe Bryant sexual assault case, the judge issued a sealed ruling that legal experts now say dealt a serious blow to the already troubled prosecution case.

Four days later, the rape charge against Bryant was dismissed when Eagle District Attorney Mark Hurlbert announced the alleged victim no longer wished to go forward.

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The ruling, pertaining to defense efforts to identify a "Mr. X" whose DNA was found on the young woman at her examination by rape nurses, was revealed in more than 40 previously sealed documents from the case that were made public Friday.

"The documents reveal that the stage was set for a quick acquittal," Denver defense lawyer and legal analyst Scott Robinson said. "Prosecutors suffered a number of serious setbacks in the last few weeks before trial."

Craig Silverman, a former Denver prosecutor, described it this way: "There was something seriously the matter with the prosecution case, and that was Matt Herr."

Both men were referring to an Aug. 27 ruling by Chief District Judge Terry Ruckriegle that defense lawyers would be permitted to question Herr, an ex-boyfriend of alleged victim Katelyn Faber, about Herr's refusal to supply a DNA sample to the defense team.

Lawyers for the Los Angeles Lakers star had sought DNA samples from both Herr and from Faber's friend and co-worker at the Lodge & Spa at Cordillera, Bobby Pietrack.

They had done so in order to identify the source of sperm and semen found when Faber submitted to an examination the afternoon of July 1, 2003, about 15 hours after her encounter with Bryant at the posh Edwards resort.

The presence of another man's DNA, said the Bryant defense team, indicated Faber had had sexual relations in the short period of time between being with Bryant and reporting the alleged rape to authorities.

Ruckriegle's ruling cites the conclusion of Dr. Donna Rosenberg, a highly respected Denver-based doctor and forensic expert, that there is "overwhelmingly a logical inference" that the woman had sex in the short time between the alleged assault and her call to police about Bryant.

Lawyers for Faber and prosecutors have steadfastly denied that claim and offered experts to testify that the DNA was residual evidence of a consensual sexual liaison nearly two weeks before her encounter with Bryant.

Pietrack submitted to the defense request for DNA, but Herr refused.

But on the first day of jury selection in the trial, Ruckriegle granted a Bryant team request that defense lawyers be permitted to ask Herr at trial about his refusal to submit his DNA. The judge's order only came to light Friday.

Ruckriegle wrote Aug. 27 that he found "Mr. Herr's refusal to submit his DNA profile is a 'relevant' fact" to the case.

"According to the defense theory, Mr. Herr's refusal creates a potential inference tending to show his consciousness that he is Mr. X, which, in turn, tends to make the possibility of the foregoing sexual liaison more probable," the judge wrote.

Ruckriegle also ruled that "given Mr. Herr's denial that he met with the alleged victim immediately after the purported sexual assault, the court finds that cross-examination regarding his reasons for refusal is also germane to Mr. Herr's credibility."

Four days after that ruling by Ruckriegle, with three full days of jury selection completed, Hurlbert suddenly announced the case would not go forward - and would not be refiled at a later time.

"A lot of us had wondered what changed, right before the trial," Silverman said. "Now, we know one of the things that changed."

But Krista Flannigan, spokeswoman for Hurlbert, said it was wrong to place much significance on the Ruckriegle ruling concerning Herr and his DNA.

"That didn't have anything to do with the dismissal," Flannigan said. "The only reason the case was dismissed was that the victim said she didn't want to go forward."

Flannigan added, "I don't want to minimize it, but I don't want to make it any bigger than it was. It wasn't anything that we were really concerned about. We believed, and to this today believe, it was a very, very strong case."

Although the criminal case against Bryant was dismissed Sept. 1, Faber has filed a civil lawsuit in U.S. District Court in Denver against Bryant alleging rape.

Faber initially filed the suit as "Jane Doe," but when a federal judge ruled that she couldn't proceed anonymously, she withdrew the suit and refiled the suit, using her own name.

Ruckriegle's ruling concerning Herr and his DNA was downplayed by Herr's attorney, Keith Tooley, of Denver.

"I don't think it matters at all," Tooley said. "Kobe admitted the sex, there's no dispute about that. So my client's DNA is irrelevant. It's a phantom issue."

Asked why Herr didn't want to turn over a DNA sample, Tooley said, "The United States Constitution says he doesn't have to."

Also, Tooley said of Herr, "He didn't even see her, in that time period."

Dan Recht, past president of the Colorado Criminal Defense Bar, insisted the Ruckriegle ruling was pivotal.

"Maybe the most significant thing in here, is Dr. Rosenberg's strongly held belief that she (Faber) had sex with somebody after Bryant and before her physical exam," Recht said.

The issue was particularly important to the Bryant defense as his lawyers contended that injuries the prosecution attributed to her encounter with Bryant - which he claimed was consensual - were the result of her having multiple consensual partners in a short period of time.

"Dr. Rosenberg is a very well-respected expert who almost always testifies for the prosecution," Recht said.

Ruckriegle's ruling concerning Herr, said Recht, "at a minimum, was another straw on the camel's back.

"I don't know that it was the straw that broke the camel's back, but it certainly must have weighed heavily on the minds of the prosecutors."

Did late ruling affect Bryant case?

• Scott Robinson, defense lawyer and legal analyst: "The documents reveal that the stage was set for a quick acquittal. Prosecutors suffered a number of serious setbacks in the last few weeks before trial."

• Krista Flannigan, Eagle DA spokeswoman: "That didn't have anything to do with the dismissal. The only reason the case was dismissed was that the victim said she didn't want to go forward."

Brennanc@RockyMountainNews.com or 303-892-2742

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