Bryant’s prelim might be postponed
The prosecution has asked Eagle County Court Judge Fred Gannett to set strict guidelines about what’s relevant and admissible in the preliminary hearing. District Attorney Mark Hurlbert apparently hopes to avoid any more eruptions like the one Bryant’s defense attorney Pamela Mackey set off last Thursday when she asked if injuries the alleged victim suffered could be connected to her sexual history.
Sources said the prosecutors are no longer willing to leave it up to the defense attorneys to decide what will be brought up in public.
“I’ll say the same thing I said last week when speculation was running rampant that the defense would waive the preliminary hearing entirely,” District Attorney’s Office spokeswoman Krista Flannigan said Tuesday night. “We’re going to proceed as though there will be a preliminary hearing (Wednesday). One is scheduled, and as we know now, it will go forward.”
Bryant’s preliminary hearing is scheduled to resume at 9 a.m. Attorneys for both sides are scheduled to meet in private with Gannett at 8:15 a.m.
Prosecution wants hearing closed
Gannett must rule on those prosecution requests, as well as a motion filed Tuesday by the district attorney to close much of the rest of the preliminary hearing.
Tuesday’s motion, written by special prosecutor Ingrid Bakke, is a strongly worded condemnation of Mackey’s line of questioning that led to Gannett’s ruling to halt last Thursday’s proceedings and postpone the rest of the preliminary hearing until today.
“The bell cannot be unrung,” wrote Bakke. “It will be difficult enough to overcome Ms. Mackey’s misstatement of the facts as it is.”
Bakke asked Gannett for the opportunity to argue, in private, why such evidence, particularly at the preliminary hearing stage, is relevant.
Bakke wrote that Mackey violated the spirit, if not the letter, of Colorado’s rape shield law.
That law, she wrote, “was created in order to provide sexual assault victims greater protection from humiliating and embarrassing “fishing expeditions’ into their past sexual conduct …” because it is not admissible as trial evidence.
Bryant’s attorneys had requested that the preliminary hearing be closed to the press and public, claiming they were trying to preserve Bryant’s right to a fair trial. They made the request again last Thursday before it began, and again while it was under way.
However, Mackey’s attack on the alleged victim poisons the very jury pool the defense attorney claims she was trying to protect, Bakke wrote.
“A statute specifically exists to protect a victim and witnesses from needless harassment regarding sexual conduct,” wrote Bakke. “Attorneys are expected to proceed in an ethical manner. 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.
“What was even more unexpected was her conscious misrepresentations of the evidence in order to smear the victim publicly.”
Bakke cited a case in which the court ruled that to allow the defense to address sexual history matters that are inappropriate at trial during a preliminary hearing, in open court, “would completely abrogate the rape shield statute and its purpose.”
Fight to finish
Whether Gannett resumes the preliminary hearing today or postpones it another week, legal analysts agree the case will be bound over for trial in District Court.
“It’s apparent there will be no plea bargain,” said Denver defense attorney Craig Silverman. “To use a poker analogy, they’re all in. This won’t end until there is a guilty verdict, a not-guilty verdict, or a dismissal.”
Is that all?
One of the constant questions Flannigan says she gets asks why the prosecution is not presenting more evidence.
“They don’t need to,” said Flannigan. “At the preliminary hearing they’re only trying to establish probable cause. They’re not trying to get a conviction. They lay out the entire case at trial.”
In conferences prior to the preliminary hearing with attorneys from both sides, Gannett limited the amount and type of evidence the prosecution would be allowed to present, saying some of it was not relevant for the purposes of a preliminary hearing. Gannett said he did not want to admit videotaped statements by the alleged victim and an audio taped session taken during Bryant’s initial questioning with sheriff’s investigators.
And what about defense witnesses?
Flannigan said their office has been told there won’t be any, but that may not be the final word.
“They can change their minds at any time and they don’t have to tell us,” said Flannigan. “The rules are different for the defense than for the prosecution, and they’re also different for a preliminary hearing than a trial for many things.”
During the preliminary hearing, District Attorney Mark Hurlbert and his team, Gregg Crittenden and Ingrid Bakke, are trying to convince Gannett that it’s probable a crime was committed, and that Bryant could have committed it.
After hearing that evidence and the cross examination from defense attorneys, Gannett will decide whether Bryant will stand trial. Gannett has issued no timetable for his ruling.
As for today’s scheduled preliminary hearing, if it were a baseball game it would be in the middle of the seventh inning stretch.
“The defense finishes their cross examination, and that’s it,” said Flannigan. “No one can predict how long that will take.”
No one can predict, either, how much of today’s preliminary hearing will be open to the press and public. Bryant’s defense attorneys have asked repeatedly that the proceedings be closed. Prosecutors also asked Gannett to close portions of today’s hearings. Their request came on the heels of a question by Mackey during cross examination asking Eagle County Sheriff’s Detective Doug Winters whether the alleged victim’s injuries could have been the result of the woman having sex with three men in three days.
What’s love got to do with it?
Former Denver District Attorney Norm Early blasted Bryant’s assertion that sex between Bryant and his alleged victim was anything other than forced.
“You’ll find it hard to convince me that two loving people flirting with each other consummated their relationship by one bending the other over a chair,” said Early.
Early also took offense at Bryant reportedly asking the alleged victim not to tell, and telling her not to bother because no one would believe her over him. Early said it’s the kind of thing people who sexually assault children tell their victims.
Not so fast, said Silverman.
“”Don’t tell’ could be construed as the kind of thing a rapist might say, but not necessarily,” said Silverman. “When you consider Kobe Bryant’s celebrity and marital status, there could be an alternative explanation.”
Silverman also said he doubted at least part of the explanation that Bryant choked his alleged victim. He pointed out that the Sexual Assault Nurse Examiners report showed no bruises on the throat, only a bruise on the alleged victim’s left jaw about half the size of a penny.
“First we heard about a strangulation expert they were hiring,” said Silverman. “Now it’s one small bruise on the jaw.”
The way Silverman understood the alleged victim said “no” could also be problematic.
“She said “no,’ but it was in a conversational tone,” said Silverman. “Common sense dictates that it would be more assertive than that.”
Cynthia Stone, media coordinator for the Colorado Coalition Against Sexual Assault, said bruises or the lack of them, as well as the lack of an apparent struggle with Bryant, does not mean the alleged victim wasn’t fighting.
“Victims sometimes don’t fight harder because they’re fearful, fearful for their life,” said Stone. “She could have been fearful for her life, or maybe retaliation.”
“She was probably fighting the best way she knew at the time,” said Stone. “It just didn’t happen to be physical.”