Defense loses bid; hearing open to public

Updated: October 4, 2003, 4:38 PM ET
Associated Press

EAGLE, Colo. -- Kobe Bryant's lawyers lost their bid to force his accuser to testify at a preliminary hearing and to close the session to the public, setbacks that could prompt them to waive the proceeding and go straight to trial on a sexual assault charge.

Bryant's attorneys did not return calls seeking comment after a judge denied their requests on Thursday, but legal experts said they expect the defense will waive the preliminary hearing, which determines whether there is enough evidence to put someone on trial.

"The whole point of a preliminary hearing from a defense lawyer's point of view is to be able to question the witnesses," said Los Angeles defense attorney Steve Cron. Without that option, he said, the hearing is just a chance for prosecutors to present evidence.

"It's a total victory for the prosecution," said Craig Silverman, a Denver defense attorney who is following the case.

Eagle County Judge Frederick Gannett said that even if Bryant waives the Oct. 9 hearing, he still must appear that day for a bail hearing.

If Bryant's attorneys waive the hearing, a district judge could take Gannett's seat and proceed immediately with Bryant's initial appearance in that court, former prosecutor David Lugert said.

"It moves things along, you don't get facts of the preliminary (hearing) out, and he doesn't have to come back in 30 days," said Lugert, a defense attorney in Eagle.

Gannett also turned down defense requests to see the woman's medical records. She was treated earlier this year at a hospital after police at the University of Northern Colorado, where she was a freshman, determined she was "a danger to herself."

The defense request suggested that Bryant's attorneys wanted to raise questions about the woman's mental stability.

Prosecutors and attorneys for the woman and for hospitals argued that such records are protected under state and federal privacy laws. Gannett said the issue should be decided by the presiding judge if the case goes to trial.

Bryant, 25, was charged with felony sexual assault after the 19-year-old woman said he attacked her June 30 at the mountain resort where she worked and he was a guest. The Lakers star has said the two had consensual sex.

Prosecutors were expected to present key evidence at the preliminary hearing, including photographs of what they say are injuries to the woman, a videotaped statement from her and a statement from Bryant they say supports much of what his accuser told investigators.

However, Gannett said prosecutors plan to withdraw both the video and audio statements if the hearing remains open.

A spokeswoman for the prosecution did not immediately return a call for comment.

The judge plans to meet with attorneys to decide whether parts of next week's hearing should be closed to preserve Bryant's right to a fair trial. However, he said he was leaning toward keeping the proceeding open.

Victims are rarely made to testify at preliminary hearings, though defense attorneys often request it.

Bryant's attorneys had argued that the judge had a duty to assess the alleged victim's testimony and that they have the right to cross-examine her. Prosecutors and attorneys for the woman said enough evidence existed already without subjecting her to unnecessary anxiety and intimidation.

Defense attorneys Hal Haddon and Pamela Mackey also had argued that publicity surrounding the hearing would threaten Bryant's right to a fair trial by exposing potential jurors to damaging information. Preliminary hearings can be closed in Colorado if a judge determines that right is threatened and there are no alternatives.

But Gannett said a closed hearing would produce media speculation that could be more damaging than "narrowly tailored evidence" presented in an open hearing.

Prosecutors and attorneys for news organizations said the hearing should remain open under long-standing practice across the country.

Lawyers for news organizations including The Associated Press, NBC, CNN, the Los Angeles Times and The Denver Post said no preliminary hearing has been closed to the public in Colorado since 1979, when the state Supreme Court set standards for making such decisions.

Copyright 2003 by The Associated Press