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Lawyers joust over jury

NBA star Kobe Bryant follows his defense attorney Pamela Mackey, left, along the hallway at the Eagle County Courthouse during a morning break from a pretrial hearing, Monday June 21, 2004, in Eagle, Colo. A member of Bryant's security team, Kym Stewart, rigth holds the door open. (AP Photo/Ed Andrieski)
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Kobe Bryant’s fate eventually will rest in the hands of 12 jurors, and attorneys spent much of Monday morning arguing over what they will asked before they’re seated and how they will be instructed when all the arguing is done.Monday’s debate centered on the first inquiries potential jurors will face – the jury questionnaire – and the last words they’ll hear before entering into private deliberations – the jury instructions – to decide whether Bryant is guilty of rape.Question of consentBryant’s defense co-counsel, Harold Haddon said prosecutors must prove beyond a reasonable doubt that the alleged victim did not consent. If they are unable to prove beyond a reasonable doubt that she did not consent, Haddon said, the jury should be instructed to acquit Bryant.Haddon said it’s the prosecution’s job to prove that consent did not occur.”If the prosecution does not disprove consent beyond a reasonable doubt, the defendant must be acquitted,” said Haddon, discussing his proposed jury instruction language with District Judge Terry Ruckriegle.Haddon said that the phrase “against her will” must be defined and determined where the words will appear in the jury instructions.”If someone consents, it’s not submission against her will,” Haddon said to Ruckriegle.Not true, said Matthew Holman of the Colorado Attorney General’s Office. He said all that matters is proving that Bryant’s actions were enough to force or coerce his alleged victim’s submission. Holman said Haddon’s proposal is designed to do nothing more than confuse the jury.What is consent?Bryant, 25, is charged with one count of felony sexual assault for allegedly raping a 19-year-old Eagle woman June 30, 2003, at the Lodge and Spa at Cordillera. He has said the sex was consensual.That definition of consent, said legal experts, could be one of the linchpins of this case.Local defense attorney and former state and federal prosecutor David Lugert said if the jury finds that Bryant “reasonably calculated to coerce the alleged victim’s will,” he could be convicted of a lower level of sexual assault – a Class 4 felony – or sexual assault without violence or force. The presence of force makes it a more serious felony.”They want a second opinion, a second kick at the cat, about the consent question,” said Lugert. “They want to ask the same question two different ways, hoping to get two different answers. It’s just good lawyering.”Cynthia Stone, director of the Colorado Coalition Against Sexual Assault, said Haddon is trying to redefine consent under Colorado law. She said in Colorado, consent is clear, not confusing.”Under Colorado law, consent is active and knowledgeable. Both participants are actively and knowledgeably willing,” Stone said. “Research on rapists has shown that they are very practiced at getting their victims to submit without gratuitous violence. The more gratuitous the violence, the more likely that victim is to report and consequently the more likely the rapist would be caught. And rapists know this.”DNA testingProsecutors abandoned attempts to perform a second round of testing on four swabs and seeking the same level of testing as the lab Bryant’s defense attorneys used.Prosecutor Dana Easter said some independent labs are able to detect samples much smaller than the CBI lab can. She said the CBI lab is extremely busy and understaffed. Easter said that among the DNA samples on the cotton swabs in question is spermatozoa.”We’re talking about DNA samples so minuscule they fall three times under the level of testing by the CBI,” she said.Easter said prosecutors had lined up a lab in California but canceled the tests when they learned that experts from neither the prosecution nor the defense would be allowed in the lab during testing.She said more testing would delay the trial, but she also said that if the trial date was late enough, prosecutors would like to push ahead with another round of DNA testing.”Testing is a truth-seeking function,” said Easter.Haddon responded that the window of opportunity has closed.”Our position is that enough is enough,” said Haddon.Ruckriegle agreed, and he ruled that there would be no further testing.AT A GLANCEMonday’s argumentsAttorneys presented arguments about:• The questionnaire potential jurors will complete prior to being called for interviews during the selection process.• What elements the jury instructions will include, and arguments over what is considered consent, the linchpin of the entire case.• Whether jury instructions would include a discussion of the crime scene investigation by Eagle County sheriff’s investigators. It was a defense motion, and the judge denied it.• DNA testing: The judge ruled that the prosecution could not reopen testing on the four swabs collected as evidence from the alleged victim following her rape examination. Prosecutors last week said they would discontinue further testing in hopes of helping get an August trial date. However, prosecutor Dana Easter said if the trial date would allow sufficient time, they would like their half of the four swabs retested in an independent lab. The judge said no.• Experts on both sides submitted reports after testing the tape recorder carried by Eagle County Sheriff’s Detective Dan Loya, who recorded an interview with Bryant the night they met him at the Lodge and Spa at Cordillera. Loya carried the tape recorder in his shirt pocket. When the defense expert was given the prosecution’s report, the defense expert conducted two more tests.


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