Case breaking new legal grounds |

Case breaking new legal grounds

NBA star Kobe Bryant arrives back at the justice center after a lunch break where he is in court for a pretrial hearing on his sexual assualt charge in Eagle, Colo., on Friday, Dec. 19, 2003. (AP Photo/Marc Piscotty)

Court is a little like basketball. Kobe Bryant, for example, did not become an excellent player between commercial breaks. It took years of 1,000 jump shots a day. It may seem mundane, but there’s no other way.

The case that will either send him to prison or back to the NBA is built much the same way. It will take months – more months than it has already, say legal analysts.

Friday’s motions hearing – the first of two scheduled – began slowly setting the ground rules and parameters for what’s to come. It’s tough sledding through largely uncharted legal territory.

“From the victim’s point of view, if the allegations are true and there’s a conviction, you want make sure it’s a good conviction. The court should proceed with caution,” said local attorney Rohn Robbins.

“From Kobe Bryant’s point of view, he’s facing possible life in prison. He has everything to lose and he wants everything considered as carefully as possible. He also wants the judge to proceed with caution,” said Robbins.

It all takes time.

“People came expecting immediate results,” said Robbins. “There were no touchdowns, but some of the important work was accomplished. The rules laid out and issues were framed.”

District Judge Terry Ruckriegle said many of the matters before his court Friday were largely without legal precedent. He said repeatedly that he would essentially need to be educated. That education would have to be wedged into a tight schedule of civil, domestic and criminal cases.

“The case will proceed carefully because they’re creating law in this courtroom,” said Robbins.

Attorneys were a little amused at the grumbling among media wags that nothing seemed to get accomplished Friday.

“The media seemed a little upset that he decided not to decide anything,” said Robbins. “He decided to proceed with caution.”

The issues: Private or not private

Robbins said that even though this seems like nothing but a celebrity case, there are real constitutional issues at stake, important issues in developing case law in a victim’s right to privacy and also the privacy of one’s own mental health records.

“This is not just a celebrity case, said Robbins. “There are real issues of constitutional law to be decided.”

Much of the new legal ground will deal with defining victim’s rights. Most of Friday afternoon’s debate centered on a conversation the alleged victim had with a victim’s advocate rape counselor from the Resource Center, while a police investigator was in the room. According to the arguments Friday, the counselor made a one-line notation about that conversation, but didn’t make it until the next day.

That, said Robbins, raises a few fundamental legal questions.

Foremost among them, is how far a victim’s rights extend and what is her constitutional right to privacy?

“We all know what the defendant’s rights are,” said Robbins. “We don’t really know what the victim’s rights are to privacy.”

Another issue is what is privileged – or private – communication?

Toward that end, three issues must be decided, said Robbins.

First, is a victim’s advocate-victim privilege the same as a therapist-patient privilege?

Second, is a communication uttered in the presence of a third party, in this case a police investigator, effectively a waiver of that privilege of privacy?

Third, since these statements are said to have been made in front of a police investigator, are they therefore part of police investigation? If they are found to be part of a police investigation, they’re likely not privileged.

“Since this statement, whatever it was, was written down the next day, was it an impression rather than a communication?” asked Robbins. “My impression is that if this statement was made in front of a police investigator, it’s part of an investigation and not privileged.”

What Happened Friday

Five issues were dealt with during Friday’s first of two scheduled motions hearings in the Kobe Bryant case:

– Victim motion about “in camera” proceedings of privileged medical records and history.

The victim’s attorney argued, and the DA joined, that any proceedings

involving the medical records of the victim should not be held in public. The defense did not object to that request. The media’s attorney raised the issue of public access to the proceedings. Ruckreigle requested briefs to be filed by attorneys for all sides regarding the victim’s rights for privacy balanced against the First Amendment. The defense attorneys are to provide an offer of proof as to potential witnesses that may testify regarding the victim’s medical privilege. An offer of proof is an explanation to the judge and other attorneys what a witness will say, and what information is being sought.

Judge Ruckriegle expects to make his ruling in about 21 days.

– DA discovery motion about scientific testing of certain evidence.

The district attorney requested a hearing to determine the defense’s scope of involvement in the testing of certain evidence by the Colorado Bureau of Investigation (CBI). The district attorney said the CBI has a policy that parties can be present for a portion of the testing, but for quality control purposed there is not access for the entire process. DA stated that experts are needed to explain why this procedure is in place.

Judge Ruckreigle granted the motion and a hearing is set for Jan. 23.

– Defense motion for discovery about the release of clothing to the defense.

The district attorney does not want to release clothing into the custody of the defense, and argued that it should remain in the custody of law enforcement. He based his argument on four points: (1) chain of custody issue; (2) preserve overall appearance of evidence; (3) defense is able to inspect the evidence; and (4) have samples available for testing.

The district attorney has one more expert who needs to inspect the evidence.

Visual inspection by the prosecution and defense must be completed by

Jan. 5.

– Defense motion for discovery about derogatory T-shirts.

The District Attorney’s Office offered to make further inquiry of the Sheriff’s Office investigators involved in the Bryant case as to their ordering and/or purchase of shirts. That report is due Jan. 5.

– DA motion about pre-trail publicity.

This pertains to statements in the New York Daily News made by retired Judge William Jones. The district attorney requested an independent investigation to determine the source of the leak. Judge Ruckreigle denied the motion.

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