Rape shield to return to spotlight | VailDaily.com

Rape shield to return to spotlight

District Judge Terry Ruckriegle will likely begin to decide this week whether to throw out Colorado’s rape shield law in the Bryant case.

Local defense attorney and former prosecutor David Lugert predicted that later this week, attorneys will probably argue the constitutionality of Colorado’s rape shield law, designed to keep attorneys from dredging up a sexual assault victim’s personal history in an attempt to humiliate her.

In a Dec. 12, 2003, motion, Bryant’s defense attorneys Pamela Mackey and Harold Haddon said that the law creates an unfair treatment of defendants accused of rape and the type of evidence defense attorneys can use against the accuser.

Denver defense attorney Lisa Wayne explained that under the normal scenario in most rape cases, the defendant sometimes has what’s called “uncharged prior bad acts.” They’re not actual crimes, but allegations of acts that fit the behavior patterns regarding what the defendant is charged with ” such as using weapons in sexual assaults or break-ins.

What’s good for one side should be good for the other, say Bryant’s attorneys. They say if patterns of behavior can be raised against a defendant, defense attorneys should also be able to raise them against an accuser.

“The defense is using that pattern language against the accuser,” said Wayne. “The defense is saying if those kinds of patterns can be used against defendants, they should be able to flip it and use it the same way against the accuser and discuss her sexual history.”

In their motions, Bryant’s attorneys went straight to the heart of what they say is the alleged victim’s motives. They said the alleged victim’s accusation fits a pattern of behavior in which she creates personal crises to attract the attention of her former boyfriend. Driving herself home from Cordillera, she used her cell phone to call him.

On the other side, prosecutors checked out allegations that Bryant had been involved with a Portland, Ore., woman who worked at the hotel where the Lakers stay when they’re on the road against the Trailblazers.

“Politically correct times should not trump a defendant’s right to a fair trial, and a jury should hear all the evidence,”said Wayne. “It (rape shield) is a policy, but it should not override a defendant’s ability to bring in evidence that could help ensure that all sides receive a fair trial.”

Lugert and Wayne agreed it’s unlikely that Ruckriegle will rule in the defense’s favor, but that’s not the end of the road.

Even if the judge rules against them, Bryant’s defense attorneys could use another legal avenue to bring in some of the information. Rule 404B, under the Federal Rules of Evidence, allows evidence about patterns of behavior and possible motives for both the defendant and the accuser.

“The rape shield law has never been thrown out by all the arguments against it by all the most creative attorneys, and I doubt Judge Ruckriegle will throw it out this time,” said Lugert.

The defense must prove beyond a reasonable doubt, in trial court, that the law is unconstitutional. Lugert explained that if they’re unsuccessful, and if Bryant is convicted, it establishes another aspect of the case to appeal to a higher court.

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