Hearings in Bryant Case Not Taking Usual Turns

Hearings in Kobe Bryant’s sexual assault case resume today at a critical juncture, with the prosecution in dire need of rulings in its favor, legal analysts say.

Already telling is an unusual role reversal. Usually the prosecution floods the court with motions trying to get as much evidence as possible admitted, experts say, while the defense tries to limit what a jury will hear.

Sexual assault cases can be an exception to the typical scenario, but not to the extent of the Bryant case. The Laker star’s attorneys have bombarded Judge Terry Ruckriegle with information it believes jurors must know to make the proper decision, and the prosecution has argued to keep evidence out.

Bryant’s strategy has been apparent since an October surprise -- when his attorneys opted to go ahead with the preliminary hearing, confounding experts who predicted he would waive the proceeding to keep potentially damaging details of the alleged rape from the public. The defense has continued to push for evidence to be admissible at trial, believing that the more the jury knows about the 19-year-old accuser, the better it is for Bryant.

“In so many sexual assault cases it really does come down to the credibility of the alleged victim,” said Karen Steinhauser, a law professor at the University of Denver and a former prosecutor.

Bryant’s attorneys have three irons in the fire. They are trying to gain access to the woman’s medical records by claiming she has waived health provider-patient privilege by discussing two suicide attempts with others; they want statements Bryant made to investigators and clothing seized from him suppressed because they believe the evidence was obtained illegally; and they believe the woman’s sexual activity surrounding the June 30 alleged rape is an exception to Colorado’s stringent rape-shield law.

Resumption of the rape-shield and suppression hearings will take place today and Thursday in closed session at Eagle County Court. The alleged victim and several other witnesses are scheduled to testify as part of the rape-shield hearing.

Experts say the defense is unlikely to win all three prominent battles. However, the effort will have been worthwhile even if the defense loses them all because nearly every significant witness will have testified at the hearings. The defense has cross-examined everyone from police investigators to the alleged victim’s mother, friends, co-workers and former college classmates.

By the time the pretrial hearings end, Bryant attorneys Hal Haddon and Pamela Mackey will have gauged the effectiveness and credibility of each witness.

“Motions are filed for two reasons, and only one is that you expect to win,” legal expert Craig Silverman said. “The other is that you get an opportunity to cross-examine witnesses against you. You want to know everything everyone will say before they say it at trial.

“There are prosecution witnesses who would never voluntarily speak to defense investigators. The best way to get around that is to put them on the stand during a motions hearing.”

Ruckriegle’s ruling to allow the defense to question the alleged victim is an indication that Bryant’s attorneys have submitted compelling evidence in sealed affidavits that the woman’s sexual conduct with men other than Bryant could be relevant, analysts say. Dist. Atty. Mark Hurlbert tried to appeal the ruling, but the state Supreme Court declined to hear the appeal.

Bryant, 25, is accused of raping the 19-year-old woman at an Edwards, Colo., resort where he was a guest and she worked at the front desk. Free on $25,000 bond, he faces four years to life in prison or 20 years to life on probation if convicted.

The woman told Eagle County detectives July 1 that she willingly went to Bryant’s room and engaged in consensual kissing before he grabbed her by the neck and raped her.

Bryant says they had consensual sex. He had minor knee surgery on the morning of July 1 and that evening spent more than an hour talking to detectives in his room before being transported to a hospital for an examination.

The woman was examined about 15 hours after the alleged rape, and semen and sperm from a man other than Bryant were found on her thighs and vaginal area. Dried semen from someone other than Bryant also was found on the underwear she wore to the examination.

Haddon and Mackey contend that the woman had sex with someone else between the time she left Bryant’s room and her examination, although there is no indication in public filings that they have direct evidence to support the allegation. The woman told investigators she last had sex two days before the encounter with Bryant, and that her partner had used a condom, a scenario that experts say does not account for the fresh semen and sperm taken at her examination.

The defense also alleges that she had sex with two prosecution witnesses, and that she had a “scheme” to have sex with Bryant and falsely report rape to get the attention of an ex-boyfriend.

Experts say the information could constitute an exception to the rape-shield law because proof that the woman was untruthful about her sexual conduct with other men impacts her credibility.

“Lying in an investigation would be an exception to rape shield,” said Larry Pozner, a Denver attorney who has followed the case closely.

Victims’ advocates are alarmed that the defense will have wide latitude in questioning the woman at such an early stage of the proceedings. Bryant has not entered a plea and analysts predict a trial would not be held before the middle of the summer.

“No witness performing his or her civic duty of cooperating with a criminal prosecution should be subjected to extensive interrogation at a pretrial hearing,” said Karen Baker, Director of the National Sexual Violence Resource Center. “This is especially harmful when the interrogation intrudes not only upon the rape shield statute but underlying fundamental constitutionally guaranteed rights to privacy.”

However, rape shield hearings in which the alleged victim testifies are a normal part of the legal process, said Steinhauser, who has prosecuted numerous sexual assault cases.

The woman accusing Bryant probably has undergone hours of preparation for her testimony and has been reminded that Bryant will also be in the room during the hearing.

“It is extremely stressful and difficult to be asked about the most private details of your life in front of the person you have accused of assaulting you,” Steinhauser said.

Haddon and Mackey are expected to be tougher on Bryant’s accuser in closed session than they would be in open court at trial. How well the woman withstands the scrutiny could determine whether the case ever gets to that point. Experts say prosecutors would drop the charge only if the alleged victim declined to testify at trial.

“The only way the case goes away is if the court rulings on rape shield are so bad for the woman that she and her lawyer see it as damaging her ability to get a large civil settlement,” Pozner said. “She would have to affirmatively tell the prosecutors that they must drop the case.”

Despite what many legal analysts say has been a strong showing by the defense in pretrial hearings, most expect Hurlbert to win enough rulings to bolster his belief that Bryant’s guilt can be proven.

One key will be whether Bryant’s statements to investigators are admissible. The statements were taped by a detective but have not been heard publicly.

“It is possible he made some inconsistent statements,” Steinhauser said. “If he said, ‘I don’t know this woman,’ or, ‘We never had sex,’ it raises the question of why did he lie.

“It’s just like possible inconsistencies in what the alleged victim said about her sex life. It goes to credibility, which is crucial in a he-said, she-said case.”

Gaining access to the medical records appears to be a longshot for the defense, experts say.

“No judge wants to make a ruling that if you talk about your medical condition, you have waived privilege,” Pozner said. “That would not be a popular decision.”

Even if Ruckriegle sides with prosecutors on medical records and the suppression of Bryant’s statements, the defense would maintain the momentum it has built since the preliminary hearing should the judge rule that some of the woman’s sexual conduct is an exception to the rape shield law.

“We all have won cases that people said we would lose,” Steinhauser said. “But any evidence the defense gets in that impacts the credibility of the alleged victim makes it more difficult for the prosecution to prove guilt beyond a reasonable doubt.”