Some sex history allowed in Bryant rape case | VailDaily.com

Some sex history allowed in Bryant rape case

Kobe Bryant’s defense attorney Pamela Mackey blew up last fall’s preliminary hearing when she asked that stiletto question, “Could her (Bryant’s alleged victim) injuries have been caused by having sex with three men in three days.”Now it’s a question the jury will decide.District Judge Terry Ruckriegle ruled Friday that the jury can hear evidence of Bryant’s alleged victim’s sexual activities during the 72-hour period before her rape examination the day after the June 30, 2003, incident at the Lodge and Spa at Cordillera.Ruckriegle will allow Bryant’s defense attorneys, Pamela Mackey and Harold Haddon, to bring in evidence of the alleged victim’s sexual conduct during the 72 hours preceding her rape exam. Ruckriegle said the evidence will help the jury determine the cause of vaginal injuries found by the sexual assault nurse examiner. Those injuries include three genital tears three centimeters long and several other much small tears less than a millimeter long.Ruckriegle ruled that the evidence from the 72-hour period will help the jury determine how thise injuries might have been inflicted – by Bryant or someone else – as well as the source of the DNA and other bodily fluids found on the alleged victim and her underwear, and help the jury understand the expert testimony about that physical evidence.Ruckriegle will also allow defense attorneys to explore the relationship between Bryant’s alleged victim and each outcry witness, former boyfriend Matt Herr and Bob Pietrack, who was working as the bellman the night of the incident.How Ruckriegle arrived at his rulingLocal attorneys Rohn Robbins and Jim Fahrenholtz agreed that Ruckriegle made the correct decision, in keeping with Colorado’s rape shield law. The law is designed to protect rape victims from character assassination during the trial. It presumes a rape victim’s sexual history and reputation are not relevant, and therefore are inadmissible in a trial. But it’s not absolute.”If the defense can produce evidence that will potentially explain another source of injury or bodily fluids, that evidence can be admitted,” said Robbins. “The court found the defense’s explanation to be credible and ordered that it can be admissible.”Bryant’s defense team has overcome two hurdles and overcome a lot of evidence.”Robbins said Ruckriegle’s ruling won’t allow an overall fishing expedition into the alleged victim’s activities, but it will allow fishing within that 72-hour time frame.”The evidence will now include a history of sexual relations, or lack thereof, with these two outcry witnesses,” said Robbins. “It could come down to the nature of the sexual encounters, the nature with which they dealt with each other, as opposed to an assault.”Mackey and Haddon have said that the alleged victim’s injuries could have been caused by someone other than Bryant. The defense also has suggested that the woman sought attention from ex-boyfriend Matt Herr and that falsely accusing Bryant of rape falls into a pattern of “attention-seeking behavior” that also includes multiple suicide attempts.When questioned by sheriff’s investigators the night after the incident, Bryant was wearing the same T-shirt he had worn the night before during the incident. The T-shirt was stained with three spots of the alleged victim’s blood.Fahrenholtz, a former prosecutor, said in a rape case any sexual encounter within that time frame would make a jury suspicious.”The prosecution asserts that the injury indicates there was no consent,” said Fahrenholtz. “Now the judge is allowing other possible explanations. No prosecutor wants that to come in.”Fahrenholtz said the prosecution portrayed the injuries at the top of its evidence list. He said the only way for the prosecution to rebut that is for the alleged victim to testify that she didn’t have that injury before her encounter with Bryant.Former Denver District Attorney Norm Early asked why, if the alleged victim had already suffered genital injuries, would she have more sex with Bryant?”If you’re the defense, you’ll still have to prove to the jury that it happened with consensual sex before Kobe Bryant. And that begs the question, why would she then want to have sex with Kobe Bryant?” said Early.Early said he anticipated some piercing of the rape shield statute.”This is pure speculation on my part, but I imagine the defense has an expert who will say the vaginal injuries could have occurred with consensual sex,” said Early. “If that is the fact, it makes it a jury issue, and everything with the ruling is consistent with that.”End of the road, or bump in the road?How this will affect the prosecution’s case remains to be seen and remains a point of disagreement. Sources contacted Friday said that while it may appear problematic right now, Ruckriegle’s ruling contains nothing prosecutors didn’t already know before they charged Bryant.Robbins took a careful and pragmatic view.”This is a significant victory for the defense, a significant blow for the prosecution,” he said.Robbins said the question must now be asked about when the prosecution knew about when might have happened during those three days.”If they did know that when they made the decision to charge Mr. Bryant, they must be confident in the other elements of the case,” said Robbins.Fahrenholtz saw it as the beginning of the end for the prosecution.”This ruling seems to me to be the iceberg that sank the Titanic,” said Fahrenholtz. “Whether it happened or didn’t, there’s now enough reason for doubt that 12 people will never be able to agree that he’s guilty. But at a trial, anything can happen.”Don’t write them off so early, said Early.”I had anticipated there would be some testimony within the 72-hour period, and I would think the prosecution anticipated it, as well,” said Early.What happens next?Early and Fahrenholtz said one likely move is for prosecutors to appeal Ruckriegle’s ruling to the Colorado Supreme Court, an interlocutory appeal. Prosecutors can immediately appeal a trial judge’s ruling to the state high court. Defense attorneys must wait for any appeal until after there is a conviction and sentencing.”We’ll be able to determine how big a blow this is to the prosecution case if they take an appeal directly to the Colorado Supreme Court,” said Early. “If they don’t think this is a particularly big hit, they probably won’t take that appeal.”District Attorneys Office spokeswoman Krista Flannigan said prosecutors would take their time to carefully evaluate and determine how to go forward.District Attorney Mark Hurlbert has already taken the state Supreme Court avenue once, when Ruckriegle ruled that the alleged victim would have to testify during a pretrial hearing and that there would be few limits on the questions the defense could ask her.Hurlbert appealed that ruling to the state high court, which upheld Ruckriegle’s order and ordered the alleged victim to appear.Fahrenholtz said if prosecutors are going to appeal Friday’s ruling, they have 10 days from Friday to do it. And if that happens, Fahrenholtz said, it would probably push back the trial date.”If they file the interlocutory, I don’t see there’s any way they’ll make the Aug. 27 trial date,” he said.Bryant, 25, has pleaded not guilty to felony sexual assault. He has said the sex with the alleged victim, who was 19 at the time, was consensual.If convicted, Bryant faces four years to life in prison or 20 years to life on probation, and a fine up to $750,000.What’s to be admitted1. Admissible: All evidence, whether direct or circumstantial, of the alleged victim’s sexual conduct within approximately 72 hours preceding her rape exam at Valley View Hospital in Glenwood Springs. Ruckriegle said the evidence is relevant to help the jury determine the cause of injuries observed by the sexual assault nurse examiner to determine the source of the DNA and other bodily fluids found and help the jury understand the expert testimony regarding those physical findings.2. Admissible: All physical evidence taken by law enforcement and the nurse examiners from the alleged victim, including all items of clothing and swabs from the physical examination. Ruckriegle ruled the evidence is relevant because it could help jurors determine the cause of the injuries observed by the sexual assault nurse examiner, specific instances of sexual activity showing the source and origin of semen, sperm and DNA, expert opinions concerning the physical findings, and credibility.3. Admissible: Information about the general nature of the relationship between the alleged victim and each outcry witness. Ruckriegle’s order says that includes whether sexual intimacy was and is a part of each relationship. The outcry witness is the first person to whom an alleged victim tells her version of what happened.4. Not admissible: Information about “other acts,” which Ruckriegle did not discuss. Ruckriegle ruled that evidence regarding those “other acts” is not logically relevant and is prohibited under Colorado’s rape shield law. Ruckriegle wrote that any value of this “other act” evidence “is substantially outweighed by the danger of unfair prejudice.”5. Not admissible: Any and all evidence of specific instances of sexual intercourse and conduct of the alleged victim or witnesses, including opinion and reputation evidence other than those in the 72 hour time frame, which Ruckriegle specifically said he would allow.