DA to appeal to high court
Prosecutors want the Colorado Supreme Court to overturn a judge’s decision that removes limits on the questions the alleged victim will face when she takes the stand in the Kobe Bryant rape case.
District Attorney Mark Hurlbert will ask the state’s high court to reverse District Judge Terry Ruckriegle’s order denying a request to limit the scope of questions defense attorneys can ask the alleged victim when she takes the stand later this month. District attorney’s spokeswoman Krista Flannigan said prosecutors will file their motion by March 12.
Ruckriegle made his final ruling on the issue Tuesday during a private session. Hurlbert announced late Tuesday afternoon he would appeal Ruckriegle’s denial to the state Supreme Court, an avenue open to prosecutors in criminal cases. Court procedures say the defense cannot appeal until a guilty verdict is handed down. The prosecution can appeal a presiding judge’s ruling immediately to the state Supreme Court.
On Tuesday, Ruckriegle denied a prosecution request to scrap a closed hearing March 24-25, at which the alleged victim is expected to testify in the case for the first time. As part of that ruling, Ruckriegle also rejected a prosecution request to limit what the defense can ask.
In denying their request, Ruckriegle said prosecutors waited until Feb. 27 to file their request to limit questioning – two and a half months after defense attorneys Pamela Mackey and Harold Haddon asked for a hearing on the matter – and that’s too long.
Prosecutors say the alleged victim should be quizzed only about the source of injuries found on her during a hospital examination and the source of semen found in underwear she wore that day.
Ruckriegle rejected those limits.
Under the state’s rape shield law, the sexual activity of an alleged sexual assault victim is generally considered irrelevant unless the defense can convince the judge that the jury should hear it.
Defense attorneys Harold Haddon and Pamela Mackey have argued that the woman’s injuries might have been caused by another sexual partner the week of her encounter with Bryant. They said in a court filing Monday afternoon that they believe the alleged victim had sex with someone else less than 15 hours after she had sex with Bryant.
Local attorney David Lugert, a former federal prosecutor, said if the Supreme Court decides to hold a hearing, they’re agreeing to try to set the proper balancing test for the extent to which a rape shield
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hearing should be balanced between abuse, humiliation and fishing expeditions against the alleged victim, and Mr. Bryant’s rights to hear about the victim’s relevant previous sexual history.
Lugert said the district attorney has conceded that two issues will be dealt with: semen in the alleged victim’s underwear and her vaginal injuries.
By subpoenaing more than 24 new witnesses, the defense may want to go further than that. “It could include many incidents and potentially go back many years,” said Lugert.
Haddon also said during Monday morning’s open session that test results they received Friday, performed on three semen swatches from the alleged victim’s neck, inner thigh and perineum, all contained DNA not belonging to Bryant.
Bryant, 25, is charged with one count of felony sexual assault, stemming from a June 30 incident at the Lodge and Spa at Cordillera. She worked at the hotel, and Bryant was a guest. Bryant has said the sex was consensual. He faces four years to life in prison or 20 years to life on probation if convicted of the felony sexual assault charge.