Kobe transcripts stay secret | VailDaily.com

Kobe transcripts stay secret

The Colorado Supreme Court ruled Monday that sometimes, the constitutional issue of “prior restraint” is OK.

District Judge Terry Ruckriegle ordered transcripts of a private hearing last month be kept private, even though they were mistakenly sent to seven media outlets. Ruckriegle ordered those media outlets not to publish any part, and said anyone who did could be held in contempt. He also ordered those who received the transcripts to delete or destroy them.

In a 4-3 vote, the state’s high court agreed, upholding Ruckriegle’s order against revealing the contents of the June 21-22 private hearing.

The Supreme Court agreed with a media appeal that the ruling constituted prior restraint of the media, but said that it was “constitutional under the specific facts and context of the case.” The court threw out Ruckriegle’s order to delete and destroy the transcripts.

A court reporter mistakenly sent the transcripts to the seven media entities by using an old email list. She had intended the transcripts to only go to attorneys for both sides, and the court.

“The Supreme Court determines that the state has an interest of the highest order in this case in providing a confidential evidentiary proceeding under the rape shield statute, because such hearings protect victims’ privacy, encourage victims to report sexual assault, and further the prosecution and deterrence of sexual assault,” wrote Justice Greg Hobbs, writing for the majority.

The ruling came with a blistering dissent. The three-judge minority wrote that freedom of press is absolutely guaranteed and that the information is already out. Those two things alone are enough to overturn Ruckriegle’s order, the minority justices wrote.

None of the details has been published or broadcast.

Seven media organizations received the transcripts ” the Los Angeles Times, Associated Press, Denver Post Corp., Warner Brothers Domestic Television, Fox News Network, CBS Broadcasting and ESPN.

In their arguments asking to publish the material, the media said it’s out there anyway.

The court says that doesn’t matter and even if it did, this would give the transcripts disproportionate weight since the information was elicited under oath.

Local attorney Rohn Robbins explained that in some circumstances, prior restraint is absolutely prohibited, such as prohibiting political criticism.

He said in this case, the court ruled that prior restraint is constitutional. State interests are of such a high magnitude, that prior restraint can be used, the court said.

The court said sexual assault victims don’t came forward and the crime is therefore under-reported, Robbins said. The court said the legislative intent is to encourage them to come forward so these crimes can be prosecuted.

“The court said that since this is such a high profile case, it would discourage other rape victims from coming forward because they would not expect privacy,” Robbins said.

Under Colorado law, a woman’s sexual history is presumptively irrelevant in a sexual assault case. Private hearings can be the mechanism to determine whether that’s true in an individual case.

“In the event it is immaterial, it is forever sealed and never disseminated,” said Robbins. “It only comes out if it’s admitted at trial.”

Chris Beall, attorney for the media, said his clients are trying to decide whether to appeal the matter to the U.S. Supreme Court.

The ruling drew mixed responses from those on opposite sides of the issue.

Washington Post reporter T.R. Reid was outraged.

“We fought a revolution to overcome things like prior restraint,” said Reid. “Why are we still dealing with this 228 years later?”

But sexual assault victims advocates were pleased with the Supreme Court’s decision.

“The Colorado Court balanced the First Amendment with privacy and the Colorado rape shield statute,” said Cynthia Stone of the Colorado Coalition Against Sexual Assault. “If any of that information is ruled relevant, it will soon enough be in the public domain. Until that time, they’ve told the media to be patient.”

Robbins, who represented the media in an open records case last summer, said restraining the press is serious, no matter the reasoning.

“Any time the press is impeded upon, I feel counsel has an obligation to battle against it,” said Robbins.

Those private hearings dealt with rape shield testimony regarding the alleged victim’s sexual activities.

The Supreme Court ordered Ruckriegle to make his rape shield ruling as “expeditiously” as possible.

“Rape shield is the court’s highest priority,” said state courts coordinator Karen Salaz.

Colorado’s rape shield law is designed to protect sexual assault victims who report the issue to law enforcement. The law deals with how much, if any, of Bryant’s alleged victim’s sexual activity will be heard during the trial. This is the last of three major issues Ruckriegle must still decide: rape shield, the alleged victim’s medical records and evidence suppression.

Ruckriegle already decided the other two ” denying Bryant’s defense attorneys access to the alleged victim’s medical records, and denying a defense request to throw out physical evidence and Bryant’s statements to Eagle County sheriff’s detectives the night he was interrogated.

What happened Monday July 19, in open court during pretrial hearings in the Kobe Bryant case.

– Prosecutors requested a 24-hour delay for posting motions on the Colorado Judicial Branch’s Web site. Prosecutors want 24 hours to review motions filed by the defense before they’re posted on the Web site.

– John Clune, attorney for the alleged victim, requested that electronic distribution of public information be discontinued. Clune said her identity has twice been distributed, last September on the Web site and once through an e-mail mistakenly sent to seven medial outlets.

– Court TV asked for television cameras in the courtroom. The Associated Press asked for still photography in the courtroom. Prosecutors, defense attorneys and the alleged victim’s attorney all oppose the request.

– A new state law allows jurors to take notes and ask questions. Prosecutors had no objection to jurors taking notes, due to the potential technical information at trial and the length of the trial, expected to last at least four weeks.

– Text messages among the alleged victim, her ex-boyfriend and a third party the day after the incident. The defense also wants to limit the testimony of prosecution DNA expert Michael Baden.

– The victims compensation fund, which would pay for health care related directly to the incident and not covered by insurance. The limit is $20,000 per victim.

– Next court date, July 30.

– Jury selection is scheduled Aug. 27 and opening statements are expected around Sept. 7.

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