Bryant judge rethinks ruling on testimony |

Bryant judge rethinks ruling on testimony

Randy Wyrick/Daily Staff Writer
AP photoNBA star Kobe Bryant, center, walks out of chambers escorted by his security, left and right, while his defense attorney Pamela Mackey looks out the door during an afternoon break Monday at the Eagle County Courthouse in Eagle.

District Judge Terry Ruckriegle will announce this morning whether he will reverse Monday’s ruling denying a prosecution request to limit the scope of questions the alleged victim will face.

“They’ll be able to call all their witnesses, and the alleged victim might be called to discuss the testimony of each and every one,” said local defense attorney and former federal prosecutor David Lugert. “This is exactly what rape shield was designed to prevent.

“At the end of the day, the victim is the one who lost, at least this round.”

In a related matter, Bryant’s alleged victim will not take the stand today as originally scheduled. Fifth District Courts Administrator Karen Salaz said the length of Monday’s proceedings made it impossible to carve out the time needed to accommodate her testimony. Ruckriegle ordered the hearing, in which the alleged victim would be forced to testify about her sexual history in the days surrounding the June 30 incident at the Lodge and Spa at Cordillera.

In a victory for Bryant’s defense team Monday, Ruckriegle denied a prosecution request to limit the kinds of questions Bryant’s defense attorneys can ask the alleged victim. In his ruling, Ruckriegle said the prosecution waited too long before filing its motion to limit questioning the alleged victim will face.

Prosecutors filed their motion last Friday. In denying the prosecution request, Ruckriegle said the motion was untimely. He said Bryant’s defense attorneys filed their original challenge two and a half months ago to the state’s rape shield law – the law designed to protect rape victims’ personal lives and keep their sexual histories from being aired in court.

District Attorney’s Office spokeswoman Krista Flannigan said prosecutors disagreed, saying that it’s relevance, not timeliness, that matters most and that’s why they asked Ruckriegle to reconsider his ruling.

“The defense has made several offers of proof – what they’ll ask the witnesses – exceeded the relevance,” said Flannigan.

Flannigan said prosecutors believe two issues are relevant: injuries and some specific evidence that remains under seal.

“We believe all other offers of proof are irrelevant,” said Flannigan.

Just the fax

Prosecutor Dana Easter said that on Feb. 20 the defense faxed a list to prosecutors containing the names of more than two dozen witnesses prepared to testify about rape shield issues – consisting mostly of the alleged victim’s sexual history. She told Ruckriegle it was the first indication she’d had from the defense that they intended to put the alleged victim on the stand.

Denver attorney Norm Early commented that prosecutors should have been paying closer attention. He said it’s not unusual for victims to be called to testify in pretrial proceedings.

Lugert said the defense is trying to show the alleged victim’s injuries could have been inflicted by men other than Bryant.

“If the defense can show the woman had sex before with other men, the defense can show she sustained her injuries that way,” Lugert said. “This is a recognized exception to the rape shield law.”

“It’s all embarrassing and tragic, but if Ruckriegle’s ruling stands, it’s also too late to do anything about it.”

If Ruckriegle’s ruling stands, it clears the way for at least two dozen defense witnesses who will testify about issues normally protected under Colorado rape shield law. Whether or not some or all of her sexual history becomes part of the trial depends largely on what the alleged victim says in court today.

“If the victim says things that are consistent with the physical evidence and will not explain away the possibility of sexual assault, then it’s not relevant,” said Early. “If the victim says things not consistent with the physical evidence, in those circumstances the judge might be willing to say the rape shield law does not protect her and could allow the information in.”

Deliver the cloth

Monday’s proceedings opened with District Attorney Mark Hurlbert and Bryant’s defense co-counsel trading shots over evidence Haddon wanted – swatches of cloth cut from two pairs of the alleged victim’s underwear – but Hurlbert was refusing to turn over.

Haddon complained to Ruckriegle that more than seven months after the case began, prosecutors continue to refuse to deliver two swatches – one from the underwear she wore the night of the incident, and those she wore the next day to under her rape exam at Valley View Hospital in Glenwood Springs.

“We have compelling needs to examine these items of evidence, especially in light of the results last week,” said Haddon. “Tests found three of the swabs of semen were not Mr. Bryant’s.”

Although Hurlbert argued that defense experts could easily do their testing at the CBI labs, Ruckriegle reminded him that attorneys had reached an agreement two months ago, and that he had ordered a month ago that the two swatches be turned over.

As Hurlbert began to protest, Ruckriegle asked, “Are you saying you think they might be tampered with?”

“I don’t want to go there right now,” answered Hurlbert.

Ruckriegle gave Hurlbert 24 hours to hand them over, to be delivered to Technical Associates, the lab hired by Bryant’s defense team. Ruckriegle said prosecutors could have someone present for tests that would destroy parts of the swatches.

Monday was a tough day for prosecutors as Ruckriegle continually questioned Hurlbert and Easter. The judge took exception when Hurlbert said his order to turn physical evidence over to defense attorneys for testing did not specifically include those swatches of cloth cut from teh alleged victim’s underwear.

On the other hand, Bryant bodyguard Troy Laster was largely ineffectual in his testimony as the defense tried to show Bryant believed he was in custody while he was being questioned, and should have been read his Miranda rights.

Laster, an off-duty Los Angeles Police Department detective supervisor, said not recall several details surrounding the incident, including why he said Pamela Mackey was his attorney, when she is not. He said he had her business card in his pocket, but had never spoken to her.

Laster also said Bryant told him to leave him alone with sheriff’s investigators, and that he was out of earshot for about an hour as investigtors talked with Bryant. That, he said, could explain why he did not hear investigators tell Bryant he was not under arrest, or was free to leave.

Defense drops a new bomb

By Randy Wyrick/Daily Staff Writer

Kobe Bryant’s attorneys said Monday that his alleged victim couldn’t have suffered much trauma from the June 30 incident, because, they claimed, she had sex with someone else less than 15 hours later.

In a motion filed Monday by Bryant’s defense team, attorney Pamela Mackey says if District Attorney Mark Hurlbert intends to claim Bryant’s alleged victim suffered trauma and post-traumatic stress disorder and produce expert witnesses to try to back it up, then the alleged victim’s sexual activity around the time of the event should become part of the total equation.

According to Mackey’s motion, evidence that Bryant’s alleged victim had sex two days prior to the June 30 incident, and less than 15 hours after, becomes relevant and admissible.

“Given the timing and nature of the accused’s sexual activity following her encounter with Mr. Bryant, all of this activity is not also relevant to test and rebut the prosecution expert’s opinions regarding the supposed trauma and post traumatic stress disorder allegedly suffered by the accuser,” wrote Mackey.

Bryant’s lawyers also said she had sex with two prosecution witnesses, which could affect their credibility. They were not identified.

Cynthia Stone of the Colorado Coalition Against Sexual Assault has said the trauma suffered by rape victims is like that suffered by a victim of a terrorist attack.

Mackey has contended that the 19-year-old accuser had a plan to have sex with Bryant to attract attention from an ex-boyfriend. Bryant’s attorneys say injuries found on the woman could have been caused by sex with someone other than the Los Angeles Lakers star.

Prosecutors have urged the judge to bar any evidence about the woman’s sexual past, saying it is not relevant to whether she was raped.

Bryant, 25, has said he and the resort worker had consensual sex. He faces four years to life in prison or 20 years to life on probation if convicted.

What happened Monday

n Ruckriegle gave prosecutors 24 hours to turn over swatches of cloth cut from the crotch of the alleged victim’s underwear. It will take six to eight weeks to complete the testing.

n Hearings continue over a motion to suppress evidence seized from Bryant. The defense asserts it was taken illegally, that Bryant was actually under arrest. Prosecutors insist that’s not the case, that Bryant was free to leave at any time, and that he provided the evidence – clothes and DNA samples – voluntarily.

n Media’s motion to open the medical records and mental health hearing was denied. That hearing will be private.

n Ruckriegle denied a prosecution motion to limit the types of questioning Bryant’s alleged victim will face when she takes the stand in an upcoming motions hearing. Late in the day, he granted a prosecution request to reconsider his ruling.

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