Bryant team targets rape shield law
December 16, 2003
Attorney Pamela Mackey gave notice to Colorado’s Attorney General’s Office, as well as prosecutors, that they will be challenging the constitutionally of C.R.S. 18-3-407, the rape shield law.
Basically, the state’s rape shield law is designed to protect sexual assault victims from harassment. Under that law, Bryant’s alleged victim’s sexual history is not admissible in court, although Bryant’s is.
That’s not fair, wrote Bryant’s co-defense counsel Harold Haddon.
In their motion filed Monday, Haddon wrote that the rape shield law “violates Mr. Bryant’s rights to confrontation, compulsory process, due process and equal protection” under the U.S. and Colorado constitutions.
“These differing and contradictory standards violate the state and federal constitutions’ guarantees of due process of law,” Haddon wrote.
For those reasons, Haddon wrote, the rape shield law should be struck down as unconstitutional and should not be applied in this case.
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“Both sides are totally entrenched,” said local defense attorney David Lugert. “They plan to do battle to the death to be successful in their cause. I suspect there are many, many more motions to come, and many more subpoenas.”
Lugert said the district attorney is trying to make sure the defense files everything under seal that he thinks is supposed to be filed under seal, that there are no more public surprises in open court.
On the other hand, Lugert said, Bryant’s defense attorney Pamela Mackey is trying to create every possible advantage for her client, which is her job.
“She’s shooting for the moon,” said Lugert. “They’re trying to strike down the rape shield law, and challenging every shred of physical evidence.”
And the frenzied pace of these past couple of days are only a shadow of what’s to come.
“Both sides are taking an ordinary system that’s time tested and works well, and are stretching it to the limit,” said Lugert. “You’ll see the system bursting at the seams.”
A motion by District Attorney Mark Hurlbert Monday asks that District Court Judge Terry Ruckriegle require that if Bryant’s defense attorneys intend to present evidence of false reporting of sexual assaults in the past by the alleged victim, then the defense attorneys should file them under seal – secured from public view.
Hurlbert also asked that any motions or affidavits filed relating to any false reporting evidence be filed under seal, and that any hearings not be open to the public.
In a separate motion, Deputy District Attorney Ingrid Bakke also asked that if Bryant’s defense attorneys plan to put forward any accusations of alcohol or drug use by the alleged victim, a hearing be held to determine its relevance.
“There is no evidence that the victim consumed either drugs or alcohol on the dates of June 30, 2003, (date of the alleged assault) or on July 1, 2003 (date of the interview with the alleged victim and the sex assault exam),” wrote Bakke. “Any evidence of either drug or alcohol use by the victim either before June 30 or after July 1, 2003, has no direct connection with the case and is irrelevant.”
Hurlbert, in addressing a report allegedly leaked to the media through a retired local judge about the alleged victim having someone’s DNA besides Bryant’s on articles of clothing, officially asked that a special investigator be appointed to investigate leaks. He suggested the model Eagle County Court Judge Fred Gannett established would be satisfactory.
Haddon asserted that Bryant’s blue nylon warmup pants and the T-shirt stained with the alleged victim’s blood not be allowed as evidence. Haddon said Eagle County sheriff’s investigators did not properly execute a search warrant when they obtain the shirt and pants from Bryant’s hotel suite at the Lodge and Spa at Cordillera, and that they did not properly advise Bryant of his Miranda rights while they were questioning him in front of the hotel, in his room and in the police car while they were driving him to Valley View Hospital in Glenwood Springs where a rape examination was performed on him.
Hurlbert filed a notice Tuesday that the district attorney will call no witnesses in Friday’s hearing.
Resource Center subpoena
Defense attorney Pamela Mackey argued in a motion filed Tuesday that interviews between Sheriff’s Office investigators and victim’s advocates with the Resource Center are not privileged.
Mackey asked that they be required to testify at Friday’s evidence hearing. Mackey also asked that Ruckriegle hold an evidenciary hearing, or that that Ruckriegle deny a motion by Resource Center attorney Peggy Jessel to quash the subpoena and require the Resource Center to provide the information Mackey is seeking.