Defense Attorneys Lose Key Rulings

Prosecutors in Kobe Bryant’s sexual assault case won two key rulings Thursday when a Colorado judge determined that the Laker star’s accuser would not have to testify at the preliminary hearing Oct. 9 and that the hearing would remain open to the public.

The decisions by Eagle County Judge Frederick Gannett increased the chances that Bryant’s attorneys will waive the preliminary hearing, the purpose of which is to establish probable cause that a crime was committed.

Also Thursday, the Lakers announced Bryant would be late reporting to training camp in Honolulu because of an illness. Veteran players are scheduled to begin workouts today.

If there is a hearing, Bryant does not have to testify, and his attorneys could ask that he not be required to be present. But sources close to Gannett said he wanted the Laker guard to appear.

“[Bryant] could just sign a notarized promise to appear at the arraignment,” said Craig Silverman, a former Denver district attorney. “But if Gannett won’t accept that, he has the power to force him to show up.”

Gannett said that on the day of the hearing he would review the prosecution’s evidence and revisit the decision to keep the proceeding open.

“At that time, the defendant may make specific arguments pertaining to the anticipated evidence and the further necessity for closure,” Gannett wrote in a 15-page filing containing language that could affect potential appeals.

Besides quashing the defense subpoena to have Bryant’s accuser testify, Gannett deferred to a district judge a defense request for an evidentiary hearing on whether to give the defense medical records pertaining to what authorities called two overdose attempts since February by the woman accusing Bryant. A judge from the 5th Judicial District takes the case after the preliminary hearing.

In deciding the woman did not have to testify, Gannett dismissed prosecution arguments that she would be intimidated and inconvenienced, instead focusing on case law that allows probable cause to be established without the testimony of an eyewitness.

However, legal analysts said the judge seemed to invite a defense appeal to the Colorado Supreme Court by criticizing the extent to which the state had allowed preliminary hearings to be “reduced to a one-act play starring a non-eyewitness perceiver as to all, or most, of the elements of the offense charged.”

Four of the seven Supreme Court justices would have to agree to hear an appeal. Should that occur, the preliminary hearing almost certainly would be postponed, a Supreme Court spokesman said.

Prosecutors have said the evidence they plan to present includes the testimony of the investigator who took the statement of the woman, photographs of what they say are her injuries, a videotaped statement from her and a statement from Bryant.

Gannett, though, indicated that the statements from Bryant and his accuser would not be necessary for probable cause to be established. The testimony of Doug Winters, a detective in the Eagle County Sheriff’s Department, would be sufficient, Gannett said. Winters interviewed Bryant and his accuser.

Bryant, 25, faces four years to life in prison on the felony charge stemming from an encounter June 30 with the 19-year-old Eagle woman at the mountain resort where she worked and he was a guest. Bryant has said they had consensual sex.

Eagle County Dist. Atty. Mark Hurlbert was pleased by Thursday’s rulings, according to spokeswoman Krista Flannigan. Keeping the woman from testifying, Flannigan said, “helps minimize the trauma regarding the process.”

Bryant’s attorneys contended that they had a right to assess the woman’s testimony and cross-examine her.

Gannett had said he would issue the rulings in one filing to give either side an opportunity to appeal. Bryant’s attorneys, Pamela Mackey and Hal Haddon, declined to comment.

Attorneys for media groups will not be afforded the same opportunity, should Gannett decide to close all or parts of the preliminary hearing. The judge scheduled the conference with prosecutors and defense attorneys only 45 minutes before the hearing.

The judge also ruled that there would be an audio transmission of the preliminary hearing to a spillover courtroom to enable more members of the public and media to attend. There are only 50 seats in the courtroom where the proceeding will take place, with half going to the public and half to the media.

“We won -- the hearing is open -- but we still have concerns,” said Chris Beall, an attorney representing The Times and other media. “Our clients are concerned that the spillover courtroom will have only audio, and not video. And there are concerns about [the potential] for partial closure of the hearing.”

Gannett’s rulings increased the chances the hearing will not take place at all, legal analysts say. Bryant’s attorneys must weigh the benefit of cross-examining Winters against the negative publicity generated by the prosecution’s evidence.

“There is no drawback to waiving the hearing,” said Larry Pozner, former president of the National Assn. of Criminal Defense Lawyers.

“The defense believes they have so much good stuff [that won’t be made public at the hearing], they don’t want the press to leave with the impression they don’t.”

Even if the preliminary hearing were waived, Bryant must appear Oct. 9 for a bond hearing, Gannett said.

In deferring a decision on an evidentiary hearing, Gannett said the defense failed to show relevance between probable cause and a waiver of patient-physician privilege.

Bryant’s team wants to see the woman’s medical records. She was treated at a hospital in Greeley, Colo., after police at the University of Northern Colorado, where she was a freshman, determined she had attempted suicide by overdosing on pills Feb. 25. Authorities said she overdosed a second time at her parents’ Eagle home in May.

Prosecutors, attorneys for the woman and attorneys for hospitals and clinics asked Gannett to throw out the subpoenas, saying the woman had not waived her confidentiality rights.

The defense contends that she gave up those rights by discussing her treatment with others.