Judge won’t limit questioning of alleged victim | VailDaily.com

Judge won’t limit questioning of alleged victim

Tuesday was a tough day to be an alleged rape victim in Eagle.

Kobe Bryant’s alleged victim will be questioned about her sexual history, probably during hearings later this month, the judge hearing the case ruled.

District Court Judge Terry Ruckriegle handed down two rulings Tuesday:

– First, he will hold a hearing in which Bryant’s defense team, Pamela Mackey and Harold Haddon, can challenge whether Colorado’s rape shield is unconstitutional.

– Second, he denied a prosecution motion to limit the line of questioning Bryant’s accuser will face when she testifies during hearings, probably March 24-25. Ruckriegle originally denied the motion Monday morning, saying prosecutors had not been timely when they responded to a defense motion filed two and a half months earlier.

District Attorney Mark Hurlbert announced right away he would appeal Ruckriegle’s denial to the state Supreme Court, an avenue open to prosecutors in criminal cases.

“The defense cannot appeal until a guilty verdict is handed down,” said local defense attorney David Lugert. “The prosecution can appeal immediately to the state Supreme Court.”

While it might mean a reprieve for the alleged victim, depending on how the Supreme Court rules, Lugert said it will certainly mean delays in the case.

“That could mean a delay of weeks or maybe months,” said Lugert.

What happened Tuesday

Tuesday’s rulings were made public following an entire day of private hearings, dealing with the three main issues. How Ruckriegle finally rules on them will go a long way in determining the strength of the prosecution’s or defense’s cases.

Those three issues are:

– Defense requests to have most of the physical evidence thrown out because they say it was illegally collected. The prosecution disagrees.

– Whether the alleged victim gave up her right to privacy regarding her medical records by discussing her medical history outside the accepted bounds of the doctor-patient relationship.

– Whether the alleged victim’s sexual history around the time of the June 30 incident is relevant and should be admitted as part of the evidence the jury will hear.

Witnesses came and went from Courtroom 1 in the Eagle County Courthouse Tuesday. Among them were six people from the University of Northern Colorado ” four women and two men ” who testified during portions of the medical records hearings.

In complying with Ruckriegle’s Monday order, prosecutors turned over to defense attorneys two swatches of cloth cut from the crotch of the alleged victim’s underwear. Defense attorneys want the swatches tested in an independent lab in Thousand Oaks, Calif.

Dr. Elizabeth Johnson, who runs Technical Associates, said that among the tests planned is an A-P mapping test, or acid phosphatose testing, a material found in semen.

The CBI’s Pete Mang said the test takes about five minutes. Johnson’s lab will have the swatches for eight weeks. Mang declined to speculate on what other tests Johnson might have planned.

Arguments over the swatches touched off a heated exchange Monday between Hurlbert and Haddon. Haddon said the defense had asked for them seven months ago. Ruckriegle reminded Hurlbert that the two sides had agreed to an exchange two months ago, and he had ordered it a month ago.

Ruckriegle waved aside Hurlbert’s arguments and gave him 24 hours to hand over the swatches. The swatches were handed over Tuesday.

Rape shield evidence

While it sounds like the young woman is in for a hammering, she still might not be, said local attorney Rohn Robbins.

“We may not want to take that quite at face value,” said Robbins. “Judge Ruckriegle likely will not and should not allow non-relevant questioning about the alleged victim’s sexual history.”

Also, the initial questioning the alleged victim endures will be done in private, for only Ruckriegle to hear. Ruckriegle will weigh that information to determine what, if any, of what he hears in those private hearings will be put before a jury during a trial in open court.

“Still, this is a floodgate that’s been opened,” said Robbins.

It’s possible, and even probable, that as part of the rape shield evidence hearings, the alleged victim could be called to comment on the testimony of dozens of witnesses subpoenaed by Bryant’s defense attorneys.

“Part of the strategy is to rattle and scare her,” said Robbins. “A defense team’s job is to prevail upon the court the position it’s taking. They’re hired to zealously represent their client.”

Rape shield constitutionality

Ruckriegle ruled that he will hear arguments about whether the state’s rape shield statute is constitutional.

A defense motion filed in the middle of December asserted that it is not and asked for the hearing. It was part of that motion that sought to exclude limits on the kinds of questions the alleged victim may face.

Robbins said the rape shield law presumes that an alleged victim’s sexual history is not admissible in court. It does not, however, ban it absolutely. If defense attorneys want it included, and Mackey and Haddon do, they have to fight for it.

Much of that arguing will be done later this month, and possibly April 26-28, when Ruckriegle and the attorneys will wrap up anything unfinished. Almost all that argument will be done in private hearings, except that dealing with the constitutionality of the rape shield law.

Suppression of physical evidence

Bryant’s attorneys insist Bryant was convinced he was under arrest while sheriff’s detectives Doug Winters and Dan Loya were questioning him, and he had not been read his Miranda rights. That, they say, is enough to throw out all the physical evidence Winters and Loya collected from Bryant.

Prosecutors say Bryant was never under arrest, was always free to leave and knew it. They say Bryant voluntarily answered their questions, handed over items of clothing and submitted to a rape kit exam.

That physical evidence includes a T-shirt Bryant was wearing with spots of the alleged victim’s blood on it. Bryant was still wearing it the next night while talking to Winters and Loya.

Loya and Winters first questioned Bryant during the early morning hours of July 2 , in the parking lot of the Lodge and Spa at Cordillera. Bryant and his entourage were staying there while he was having knee surgery at the Steadman Hawkins Clinic.

According to testimony by Winters and Troy Laster, an off-duty Los Angeles police detective, Bryant sent Laster away and volunteered to speak privately with Winters and Loya. Bryant, Winters and Loya later moved the interview to Bryant’s room, where they said Bryant voluntarily answered more questions.

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