Strategy in Bryant Case Seems Clear

The most public of court cases has gone underground, shifting the media horde seeking fresh video of Kobe Bryant from Colorado mountain resorts to Laker training camp in Hawaii.

As for the woman who has accused him of sexual assault, she moved from her Eagle, Colo., home and dropped out of college, escaping to an undisclosed location in search of privacy.

Attorneys from both sides have been quiet too, silenced by a judge’s gag order. But their strategy, evident by a recent string of court filings, is coming into focus.

By issuing subpoenas to examine medical records of the woman, Bryant’s attorneys have signaled that probing her state of mind is a key element of the defense’s strategy, experts say. Furthermore, they are vigorously pursuing the issue in an effort to head off a trial.

The defense has subpoenaed the woman’s medical records pertaining to what law enforcement sources have said were overdoses of pills in February and May.

Bryant’s side also asked a judge to decide before the Oct. 9 preliminary hearing whether the woman waived her medical-record privacy rights by discussing the overdose attempts with others, requesting that she testify at a separate waiver hearing where a determination would be made.

“Because of the importance of the accuser’s testimony to a finding of probable cause, the defense should be permitted to test her credibility as fully as possible, even at this preliminary stage,” Pamela Mackey, one of Bryant’s attorneys, wrote in a Sept. 15 filing.

In all, the court has received 15 motions and responses since Sept. 3 pertaining to the medical records and the woman’s testimony at the preliminary hearing.

Judge Frederick Gannett is expected to announce Thursday whether he’ll grant the waiver hearing, whether the woman must testify at the preliminary hearing and whether the proceedings are open to the public. Bryant does not have to testify at the preliminary hearing and is not expected to attend.

Prosecutors and attorneys representing the woman are trying to quash the subpoenas for her medical records and already are laying the legal groundwork to argue that such information be deemed inadmissible at a trial.

Legal experts expect the judge to rule that the woman will not have to testify at the preliminary hearing -- but several believe she could be required to appear at a waiver hearing.

The key question: Did she discuss the overdose attempts with others? If so, legal experts say a judge probably would allow the defense to see the medical records. Sources close to the defense said Bryant’s attorneys have several witnesses who say the woman talked to them about medical and psychological treatments she received.

However, even if the defense gets the records, introducing them as evidence at a trial is a separate issue. “It is totally discretionary,” said Bob Ransome, a Denver criminal defense attorney, “and [the judge] would be able to back up whatever choice he makes.”

Mental health history is not protected by rape-shield laws, leaving the judge to weigh an accuser’s right to privacy against a defendant’s right to question her credibility in a “he said, she said” case.

“That’s why her medical records and other emotional records become highly [relevant], they tell you something about her state of mind,” said Larry Pozner, former president of the National Assn. of Criminal Defense Lawyers.

“The prosecution wants to argue to a jury, ‘Why would she make up [the allegations]?’ In order to hold that position, they need to keep the defense from having an answer. The psychological records may provide that answer.”

Bryant, 25, faces four years to life in prison if convicted. He admits to having sex with his accuser at an Edwards, Colo., resort June 30 but says it was consensual. The woman, a 19-year-old hotel employee, told authorities the following day that she had been raped.

“The defense will contend that this woman reacts irrat- ionally when there is dissatisfaction in her life -- that is how it becomes admissible,” said Craig Silverman, former Denver assistant district attorney. “Whatever happened in that hotel room, whether the sex was consensual or a rape, the encounter ended unsatisfactorily for her. Therefore, Kobe Bryant’s lawyers can argue that this is a pertinent trait of her character. The defense just has to give the jurors something to hang reasonable doubt on.”

Other experts say that even if Bryant’s team is able to extract information by subpoena, a jury will not be allowed to view it as evidence. Personal difficulties the woman might have experienced, they say, have no bearing on whether she was raped.

“I don’t believe that because someone has gone through a bad time and may have taken an overdose, that it now means we have to question their ability to tell the truth,” said Karen Steinhauser, a law professor at the University of Denver.

The Times learned July 11 -- one week after Bryant’s arrest -- that the woman took an overdose of pills Feb. 25 at a University of Northern Colorado residence hall. She was a freshman at the Greeley school in 2002-03.

Terry Urista, the university police chief, described the incident as “a report of a suicide attempt.” Later, he told other news outlets that police determined the woman was “a danger to herself.”

Urista said the incident is the only time the woman’s name appeared in campus police logs during the school year. She was held for 72 hours at the medical center and released.

In May, authorities responded to a 911 call from the Eagle home of the woman’s family. Law enforcement sources said she had again overdosed on pills, although details of that emergency response -- and another to the home within the last year -- have been sealed from the public.

However, in a victory for the defense, Gannett ruled Monday that the Vail Police Department had to turn over records to Mackey and Hal Haddon (another Bryant attorney) pertaining to three 911 calls in the last year from the woman’s home -- including one stemming from the May overdose attempt.

Until now, The Times withheld publishing information about the overdoses because they were not relevant to the woman’s allegations against Bryant. Recently, however, the incidents have been addressed by the defense in a way that could make them a primary issue in the case’s early stages -- and beyond.

“These records are sought prior to the preliminary hearing because it is believed, based on law enforcement reports and other information in the possession of the defense, that the records will contain information important to the court’s assessment of the accuser’s credibility,” Mackey wrote.

Mark Hurlbert, the district attorney prosecuting Bryant, met with the woman and her family a few days before filing charges July 18 and was made aware of both overdose incidents. He has acknowledged that the Northern Colorado episode was a suicide attempt but said he still believed the woman was credible.

“[Hurlbert] knew his cards when he played them,” said Gary Ward, the acting Eagle police chief.

Gannett will determine at the preliminary hearing whether enough probable cause exists to send the case to trial. Another judge from Colorado’s 5th Judicial District would take the case from there and determine the admissibility of the overdoses.

Sexual assault victim advocates fear that even if a jury never hears about the overdose incidents, the recent flurry of defense motions on the subject has had an irreversible effect.

“What is damaging is that regardless of how the judge rules on the current motions, the mental health issue is put out in the public and the jury pool is tainted,” said Jill McFadden, executive director of the Colorado Coalition Against Sexual Assault.

In addition to the subpoena issued to the Vail police, Mackey and Haddon subpoenaed records from the Northern Colorado Medical Center and the student health services center at Northern Colorado pertaining to the February overdose attempt. Other defense subpoenas were issued to the Eagle Valley Medical Center, the Eagle County Sheriff’s Office, the Best Western Eagle Lodge and the Resource Center of Eagle County -- a mental health crisis organization.

An employee at the Best Western said that subpoena is for records of visits to the hotel health club by the woman and her boyfriend.

Attorneys for the North Colorado Medical Center and its psychiatric care center asked Gannett to quash the subpoenas and destroy the records already sent to him, citing medical privacy laws.

Prosecutors requested that Gannett postpone a decision on the medical records until after the preliminary hearing, meaning the 5th Judicial District judge assigned the case would determine whether the defense gets the records.

“The only conceivable argument as to why these medical records may be relevant to the issue at the preliminary hearing is that they may be used to impeach the credibility of the victim,” wrote Deputy Dist. Atty. Ingrid Bakke.

However, the fact that the judge already required the Vail police to relinquish records could indicate he will rule on the other subpoenas and on the waiver hearing rather than defer the decisions to the 5th Judicial District judge.

“[Gannett’s] rulings so far have been extraordinarily well-researched,” Pozner said. “He’s giving real consideration to all parties. He’s very involved and it doesn’t seem like he would pass the buck.”

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Times staff writer Lance Pugmire contributed to this report.