Judge Says He’ll ‘Make the Law’ on Key Motions

The district attorney prosecuting Kobe Bryant for sexual assault admitted Friday that he lied when he said in October that no one from his office had ordered a T-shirt depicting a hangman on the front and disparaging comments about the Laker star on the back.

Dist. Atty. Mark Hurlbert said that he had accepted one of the shirts, which Bryant’s attorneys said were ordered by dozens of employees of the district attorney and Eagle County Sheriff and showed “the bias” of those agencies.

Hurlbert’s admissions came amid several motions addressed by Judge Terry Ruckriegle in Eagle County court. The judge did not rule on the two most widely anticipated issues -- whether defense attorneys will gain access to the medical records of Bryant’s accuser and whether testimony about those records from the woman’s mother and others will be held in open court.

Ruckriegle said he will take time to weigh several seemingly inviolable yet contradictory rights -- that of Bryant to confront his accuser; that of the alleged victim to keep elements of her personal life private; and that of the public to view a court proceeding.

“I find no guiding authority from the Colorado or U.S. Supreme Court on balancing these rights,” Ruckriegle said. “So I am going to have to make the law.”

The judge asked that briefs be filed by Jan. 8 and said he will rule on whether to hold the testimony behind closed doors on or before the next scheduled motions hearing Jan. 23.

“I want the opportunity to reflect on it,” he said.

Ruckriegle’s cautious approach is an indication that motions hearings will take several months and could delay a trial until at least mid-summer, legal analysts said. The judge asked both sides to give him dates they are available for additional pre-trial hearings in February, March and April.

“He was saying, ‘I’m not going to be rushed into a decision on the first matter of importance that has come before me,’ ” said Craig Silverman, a former Denver prosecutor who sat in the gallery.

Experts said the decision on whether the woman’s medical records are admissible will be significant because it goes to the heart of the defense contention that she is not credible.

Bryant, 25, is accused of raping the 19-year-old Eagle woman June 30 in an Edwards, Colo., hotel room. The Laker star, who was in court Friday, says they had consensual sex.

“The reliability of the woman as a witness is central to the prosecution case,” said Scott Robinson, a Denver attorney who has followed the case closely. “The defense clearly plans to chip away at her credibility during the motions hearings.”

Ruckriegle made several relatively minor decisions, including ordering the district attorney’s office to look into a complaint by Bryant’s lawyers about T-shirts depicting a stick figure of a hangman on the front pocket and the comments, “I’m not a rapist; I’m just a cheater” on the back.

Hurlbert and Deputy Dist. Atty. Gregg Crittenden were given shirts by the company that manufactures them. Hurlbert said he and Crittenden both have discarded their shirts -- his weeks ago and Crittenden on Thursday.

An order for additional shirts was taken by an employee of the Eagle County Sheriff’s Dept. Prosecutors agreed to complete an investigation by Jan. 5 to learn who from the district attorney’s office and sheriff’s office ordered the shirts.

Bryant’s attorneys contended that “originally 78 shirts were ordered,” and that 40 employees of the district attorney’s office showed interest.

Hurlbert previously said through a spokeswoman that no one from his office had ordered shirts, but in a statement released Friday said, “I apologize for being misleading. It was not at all intentional. It was done without my knowledge or authorization.”

Defense attorney Pamela Mackey said that for investigators and prosecutors to order the shirts, “goes to the bias of [those] agencies.”

Ruckriegle did not allow either side to dwell on the issue, and after a recess heard arguments on whether to close a portion of the hearing. Bryant’s attorneys offered no opinion, but prosecutors and an attorney representing Bryant’s accuser argued that the public should not hear testimony that might not be admissible at trial.

Deputy Dist. Atty. Ingrid Bakke said allowing the medical details to be brought up before a national audience would deter other alleged sexual assault victims from coming forward.

“This humiliating exposure could intimidate victims in future cases from even making a complaint to the police,” she said.

Tom Kelley, an attorney representing media organizations including The Times, argued that the hearing should be open because many details about the woman’s medical and psycho- logical history already have been reported.

Bryant’s attorneys want access to documents from the North Colorado Medical Center in Greeley, where authorities brought the woman Feb. 23 after she overdosed on pills. She overdosed again May 30, and Mackey contended in a court filing that she did so for the same reasons she accused Bryant of rape -- to get the attention of an ex-boyfriend.

The defense also wants access to a note taken by a rape victims’ advocate who spoke with the woman and was present when she was interrogated by sheriff’s investigators.

Peggy Jessel, an attorney representing the Eagle Resource Center, told Ruckriegle that communication between a sex assault victim and a counselor is privileged.

Later, she said Bryant’s attorneys were “fishing” and did not have a specific notation in mind.

Ruckriegle said he would issue a ruling by Jan. 23 and adjourned court at 3:50 p.m. Both sides were asked to meet with him in closed session.

The hearing started with the judge denying a prosecution request for an independent investigation into a leak that occurred between the two preliminary hearing dates in October.

Retired Colorado Judge William Jones told a New York newspaper that Bryant attorney Hal Haddon told him that evidence would be presented proving the woman had semen from more than one man on the underwear she wore to a rape examination. Haddon has denied being the source of the leak.

The judge also agreed to hold a special hearing to determine the conditions under which the defense would witness the testing of physical evidence that could be destroyed in the process.

It was agreed that the prosecution can call two witnesses and the defense three. Legal experts have said the evidence is probably blood, pubic hair and semen samples found during a hospital examination of Bryant’s accuser.

Also, Ruckriegle approved a defense request to visually inspect a T-shirt and two pairs of underwear taken from Bryant the day after the alleged rape. Prosecutors must make the items available for inspection by Jan. 5.