Surprises Are Likely to Continue

Kobe Bryant’s court case resumes today, six days after a drama-filled, five-hour session ended in fireworks. Legal analysts are expecting more incendiary surprises from the Laker star’s defense attorneys.

How much of the testimony the public will be privy to, however, won’t be decided until moments before the preliminary hearing resumes.

Prosecutors on Tuesday asked Judge Frederick Gannett to examine in closed session the admissibility of “certain sexual history evidence,” and they accused defense attorney Pamela Mackey of “conscious misrepresentation of the evidence in order to smear the victim publicly.”

The preliminary hearing, usually a perfunctory exercise, began Thursday with often-riveting testimony by Eagle County Sheriff’s Det. Doug Winters, who said the 19-year-old accuser stated that she was in Bryant’s hotel room when he grabbed her around the neck and raped her after she said no.

Mackey had barely begun her cross-examination when a volatile exchange with Winters brought the proceeding to an abrupt halt.

Winters said a nurse who examined the woman July 1 told him the woman had vaginal injuries consistent with penetrating genital trauma and not consistent with consensual sex.

“Are they consistent with a person who had sex with three men in three days?” Mackey asked.

Prosecutors objected, Gannett called a recess and instructed the attorneys to join him in his chambers.

A gag order prohibits lawyers and others from discussing the case publicly, but legal analysts say attorneys from both sides may emerge from today’s proceedings having accomplished their goals.

The prosecution, based on Winters’ testimony describing the woman’s version of events, has almost certainly met the relatively low standard of probable cause that would send the case to trial. And experts say that the defense has laid the foundation for an acquittal based on reasonable doubt in what appears to be a classic he-said versus she-said.

Bryant, 25, has been free on bail since he was charged July 18 with felony sexual assault for the alleged rape at a resort in Edwards, Colo., the night of June 30. He has acknowledged having sex with the woman, a hotel concierge, but says it was consensual. If convicted, he faces four years to life in prison.

Mackey will resume cross-examining Winters today. Sources close to the defense say Mackey also is expected to argue that the accuser must testify before probable cause can be established. Gannett, who weeks ago denied a defense motion asking that the woman appear, is unlikely to agree.

The defense is not expected to call witnesses, sources said, because doing so would give prosecutors an opportunity to cross-examine them.

“It’s like a boxing match,” said Jack Earley, the incoming president of California Attorneys for Criminal Justice. “Both sides are feeling each other out. It’s not meant as a final act.”

Additional testimony pertaining to the woman’s alleged sexual history probably will be done in closed session, experts say, because Gannett used similar rationale to keep testimony of Bryant’s statements to Winters private.

The defense contends that the statements Bryant made July 1 to Winters are inadmissible at trial because he had not been read his Miranda rights. Similarly, there is a question whether the woman’s sexual history should be admissible at trial because of rape-shield laws.

“Prosecutors have a good basis for asking that any discussion of promiscuity be in private,” said Craig Silverman, a former Denver chief deputy prosecutor. “The damaging statement made by Kobe Bryant may be subject to suppression, therefore it was not made public. This evidence of alleged promiscuity is also subject to possible suppression, so it too should not be available to the public.”

Under Colorado’s rape shield law -- considered one of the nation’s strongest -- most of an accuser’s sexual history is not admissible at trial. However, there is an exception for evidence that shows a previous sexual act with someone other than the defendant could have caused injuries.

At trial, prosecutors must be given a 30-day written notice and a chance to argue against such revelations, but the law does not apply to preliminary hearings. Prosecutors indicated in their filing Monday that Mackey’s question was unexpected.

“The people certainly expected an attack on the evidence presented at the hearing,” Deputy District Atty. Ingrid Bakke wrote. “But ... it was quite unexpected that Ms. Mackey would in such a deliberate and calculated manner attempt to elicit such evidence regarding the victim without notice in open court attended by the media.”

Some legal analysts say prosecutors have no one to blame but themselves for giving Mackey an opportunity to question the woman’s sexual history. The photos of vaginal lacerations that prompted her question did not need to be presented to establish probable cause, according to Earley.

“Did they really need this as part of their case?” he asked.

The prosecution evidence was limited to the woman’s statements to Winters and three photos -- one showing a small bruise on the woman’s left jaw, the others purportedly of vaginal tears caused by the attack.

But, experts say, the defense scored points in its cross-examination when Winters said he had not seen the bruise during his interview with the woman the day after the incident. He also acknowledged that photographs of the vaginal injuries, so small that they could not be seen by the naked eye, were taken after the woman had a speculum examination -- the inference being that the small tears might have occurred during that exam.

“The mind-set of the defense was on a totally different level,” said Lisa Wayne, a Denver attorney who worked with Mackey as a public defender. “The prosecution was trying to get through a preliminary hearing. The defense was looking ahead to trial.”

Reaction to Mackey’s tactics after the hearing included contentions that she was “unethical” and that she was “grandstanding” -- trying to sway public opinion and influence potential jurors.

However, Earley said, “you can ask the same question of the prosecution: Were they trying to taint the jury pool” by introducing the photos as evidence?

Experts said that in closed session, the defense would have to show Gannett evidence that the woman had sexual partners other than Bryant in the days leading up to June 30. If the defense has no “good-faith basis” to support the question, the judge could file a grievance.

Representatives of the accuser and her family, who had not made a public statement, told the Vail Daily newspaper Friday in reference to Mackey’s question: “Absolutely untrue,” attorney John Clune said.

Many observers also were aghast that Mackey repeatedly used the woman’s full name while cross-examining Winters. Although some experts say the mistakes were inadvertent, others say they were calculated.

Gannett discouraged the use of the woman’s name in his decorum order, and it was widely assumed that attorneys on both sides would abide by his wishes.

“Considering the commitment that everybody made, and given the judge’s order [not to publish the name], I think it was inexcusable,” said Steve Siegel, chairman of the Denver Sex Assault Interagency Council.

The defense team is a strong proponent of keeping cameras out of the courtroom and some experts say Mackey blurted out the name to illustrate the difficulty of a judge keeping it from happening during a trial.

Many Denver attorneys familiar with Mackey and with Bryant’s other attorney, Hal Haddon, are defending their colleagues for now.

“I have known [Mackey’s] law firm for a long time,” said Karen Steinhauser, a University of Denver law professor and former prosecutor. “I have always found her to be a very ethical attorney. They do not have a reputation for being sleazy. They have a reputation for zealously representing their clients.”

Gannett has said he plans to take his time before issuing a written decision on whether to send the case to state district court, where a different judge would preside. He is not expected to issue a ruling from the bench today.

What can be anticipated is Mackey grilling Winters on every detail, every statement the woman told him. For example, Winters said he was confused about testimony regarding tattoos the woman showed Bryant.

“There are all sorts of fertile areas for cross-examination,” Silverman said. “We can expect more bombshells.”

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Times staff writer Alan Abrahamson contributed to this report.