Bryant’s Lawyers Attack Evidence, Accuser’s Story

The second and final day of Kobe Bryant’s preliminary hearing included testimony that raised questions about the strength of the prosecution’s case, but the district attorney expressed confidence Wednesday that the Laker star would be ordered to stand trial on a charge of felony sexual assault.

Sheriff’s Det. Doug Winters -- the investigator who interviewed Bryant’s 19-year-old accuser the day after he is alleged to have raped her at a mountain resort in Edwards, Colo. -- was cross-examined for nearly 2 1/2 hours by defense attorney Pamela Mackey.

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Included in the testimony:

* The woman did not tell Winters during an initial interview that she had said “no” during five minutes of sexual intercourse with Bryant. In a later interview with Winters, the woman said she did recall having told Bryant “no” several times. In the first interview, the woman said that Bryant had stopped when she resisted.

* The woman showed up for her rape examination less than 24 hours after the encounter with Bryant wearing underwear containing another man’s semen. The source of the semen is unclear.

* Pubic hair samples from the woman, Winters said, also turned up hairs from a white person that could not have come from Bryant, who is black.

* The first person the woman met after the alleged assault was the hotel night auditor, not a bellman, as was previously thought. The auditor wrote in a letter to investigators, saying that the woman, as she finished her shift as a front desk clerk, “did not look or sound as if there had been any problem.”

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Winters was the only witness called to testify during about eight hours of testimony over two days.

Mackey’s measured tones during Wednesday’s cross-examination contrasted with her confrontational style Oct. 9 in the first portion of the hearing, when she brought more than five hours of testimony to an abrupt end by implying that the woman had had sex with two other men in the three days leading up to her encounter with Bryant.

The defense apparently convinced Judge Frederick Gannett in closed session that there was a “good-faith basis” for the comment, because Mackey was allowed to pursue a similar line of questioning Wednesday.

While many legal analysts characterized the day as a good one for the defense, prosecutors said they thought they still had a strong case and hinted that they were saving some evidence for trial.

“No prosecutor puts on his whole case at a preliminary hearing,” Eagle County Dist. Atty. Mark Hurlbert said. “It was not my intent to try this case with the media, but with an Eagle County jury of 12.”

Bryant, 25, has been free on $25,000 bail since he was charged on July 18. He faces four years to life in prison if convicted. He has said that he and the woman had consensual sex.

Gannett said he hoped to rule by Monday whether the case will go to trial in District Court.

After presiding over two days of dramatic, often-contentious exchanges between Mackey and deputy Dist. Atty. Gregg Crittenden, the judge rolled his eyes and said before adjourning: “This would gratefully conclude my role in this case.”

Legal analysts expect Gannett to order a trial because the standard of proof is low -- the victim’s statement that she was raped would probably be enough, one analyst said -- and under Colorado law a judge must view evidence at a preliminary hearing “in the light most favorable to the people.”

Crittenden said during his closing argument that ample evidence had been presented to merit a trial. He used as an example blood found on the woman’s underwear and blood on the inside of Bryant’s T-shirt.

“The defendant met the victim that night and minutes later he sexually penetrated her -- hurt her to the point where she bled,” he said. “That is uncontradicted.”

Bryant, sitting between Mackey and co-counsel Hal Haddon, reacted with dismay when Crittenden said a bruise on the woman’s jaw proved the sex had been forced. The five-time NBA All-Star, wearing a brown corduroy suit, turned to Haddon and shook his head. Otherwise he sat quietly, staring at Winters.

“He held her by the back of the neck with his hand during sexual intercourse,” Crittenden said. “He lifted up her skirt. She said ‘no.’ He pulled down her underpants and she said ‘no.’ He penetrated her from behind and she cried.

“And he held her. Holding her neck with his right hand, his thumb is going to be on her left jaw.”

Crittenden’s account was drawn from testimony by Winters last week. That was countered Wednesday as Mackey continued her cross-examination of the detective.

Winters said the woman had told him that she had gone willingly to Bryant’s room at the Lodge & Spa at Cordillera late at night on June 30, staying after her shift had been supposed to end and then sneaking through the hotel so no one would see her -- out the main entrance as if she were leaving, but then back through the employee entrance, through the employee cafeteria, out a service door, through a hallway and down an elevator, to Bryant’s room.

Winters testified that the woman had told investigators that she had expected Bryant “to put a move on her.”

She kissed and hugged him, putting her arms around him, he testified, before Bryant demanded sex.

The hotel was all but empty, Winters said, but guests were booked into the room above Bryant’s. They heard nothing, a police report indicated.

Though the woman alleges that Bryant held her by the neck, her neck and shoulders bore no marks, scratches or bruises when she was examined the next day. The bruise found on her left cheek was so small that Winters said he didn’t notice it when interviewing her.

Winters added that Bryant also had submitted to a medical exam and that there had been no marks or scratches on him.

Immediately after the woman left Bryant’s room, she met the hotel’s night auditor.

The auditor later told authorities in a letter that her co-worker “did not look or sound as if there had been any problems,” Winters said.

The auditor -- not named in court -- told the woman, who was working as a front-desk clerk, to count the cash drawer before leaving for the night. She did.

Last week’s testimony had suggested that a hotel bellman had been the first person the accuser saw after her encounter with Bryant.

That bellman, Bobby Pietrack, a college student and basketball player at Fort Lewis College in Durango, Colo., is still the “outcry” witness because he is the first person the accuser told about the rape. His testimony would not be considered hearsay.

Prosecutors “should have interviewed the night auditor” instead of allowing her to merely send a letter, said Larry Pozner, former president of the National Assn. of Criminal Defense Lawyers. “This is not the level of investigation one would expect in a crime where the defendant could get life in prison.”

Winters also testified that, in his first interview with Bryant’s accuser on July 1, he had asked why she hadn’t told Bryant, “no.” Only later, in other interviews, did she say she had said, “no,” he said.

When the woman resisted sex after several minutes of intercourse, Bryant stopped, Winters said.

“When she moved his hand away, he stopped?” Mackey said.

“Yes,” replied Winters.

“There is no dispute he stopped,” Mackey said.

“Correct,” Winters said.

Pozner said later: “When she resisted, he stopped, and that’s critical. Then there are multiple interviews and the story changes. That’s a problem for the prosecution.”

Other questions linger. Investigators have asked two men to take semen tests to determine whether they had sex with the woman near the time of the alleged rape. Neither has consented to the test.

No evidence was presented that Bryant’s semen had been found on the woman or her clothing. And the Colorado Bureau of Investigation has not returned forensic evidence from the underwear the woman wore the night of the alleged rape, despite having received it more than three months ago.

During her closing argument, Mackey said the case should be dismissed now because all the evidence presented by the prosecution was hearsay.

Gannett left the hearing open to the public over the objections of the prosecution, which until last week had not wanted the proceeding closed.

On Tuesday, prosecutors said they had received medical records mistakenly released by a Glenwood Springs hospital where the woman had been examined and had shared those records with Bryant’s lawyers. The records have been returned and copies destroyed at the hospital’s request.

Defense attorneys are seeking medical records from a number of places, including an Eagle clinic and the student health service center at the University of Northern Colorado, where police said the woman attempted suicide by overdosing on pills in February.

The judge said the request for the records would be decided by the trial judge, if the case goes that far.

Legal experts believe that, despite the defense victories at the preliminary hearing, hurdles must be overcome to argue at trial that the accuser is not credible. At issue will be the admissibility of the woman’s sexual history in the days surrounding the alleged rape and of medical records pertaining to the alleged February suicide attempt and another alleged pill overdose in May.

Prosecutors must try to get Bryant’s statement to investigators admitted at trial. Gannett did not allow that testimony to be heard in open court, suggesting that it might be suppressed at trial because defense attorneys believed the tape had been made before Bryant had been read his Miranda rights.

The accuser would almost certainly testify at a trial. Much of her life was laid bare during the preliminary hearing, but Hurlbert said during a short news conference afterward that he had been in contact with her and that she was “doing OK.”