Accuser's sexual history still at issue

Updated: October 15, 2003, 4:04 AM ET
Associated Press

EAGLE, Colo. -- Prosecutors accused Kobe Bryant's attorneys of deliberately smearing the reputation of his accuser Tuesday as they asked a judge to make sure any evidence about her sexual past is heard behind closed doors.

In a sharply worded court filing, prosecutors faulted defense attorney Pamela Mackey for asking a detective at a preliminary hearing last week whether injuries to the 19-year-old accuser were "consistent with a person who had sex with three different men in three days."

That question prompted Eagle County Judge Frederick Gannett to halt the hearing, which is to resume Wednesday and will determine whether the basketball star will stand trial on a sexual assault charge.

Also Tuesday, prosecutors said they had received medical records mistakenly released by a hospital where the alleged victim was examined after the encounter, and passed those records on to Bryant's lawyers as part of the normal exchange of evidence.

Prosecutors had subpoenaed the examination records from Valley View Hospital in Glenwood Springs. They received those records and records from an earlier visit by the woman, prosecution spokeswoman Krista Flannigan said.

She declined to comment on the date or the nature of the earlier visit. "They were records they should not have given us," Flannigan said.

The mistake was first reported by KCNC-TV in Denver.

Hospital administrator Gary Brewer did not return calls from The Associated Press.

Flannigan said prosecutors complied with the hospital's request to return the mistakenly released records and to destroy any copies. She didn't know if defense attorneys complied but said ethical standards would require them to.

Mackey's voice mail said she would not return reporters' calls. The judge has issued a gag order prohibiting those involved in the case from commenting on it.

Prosecutors said Mackey's question Thursday about the alleged victim's sexual history was a "deliberate and calculated" attempt to elicit testimony on evidence that is irrelevant this early in the case.

"What was even more unexpected was her conscious misrepresentation of the evidence in order to smear the victim publicly," prosecutor Ingrid Bakke wrote. "The bell cannot be unrung. It will be difficult enough to overcome Ms. Mackey's misstatement of the facts."

Prosecutors want Gannett to hold discussions about the accuser's sexual history in private, if he determines the evidence is relevant.

Bakke said prosecutors believe that sort of evidence is inadmissible under Colorado's rape shield law, which bars an alleged victim's sexual history in rape cases with few exceptions.

Attorney Tom Kelley, who represents several media organizations including The Associated Press, said he will fight the prosecution's request for a closed hearing. Bryant's attorneys have also asked the judge to close all or part of the rest of the hearing.

Legal experts said Gannett might give Mackey a chance behind closed doors to provide information to back up her suggestion the accuser had other sexual partners before her June 30 encounter with Bryant.

Gannett had earlier thrown out subpoenas issued by Bryant's attorneys for the woman's medical records, saying if the case goes to trial, the trial judge should determine whether those records should be turned over.

Friends of the woman have said she tried to commit suicide in February and again in May.

Bryant, free on $25,000 bail, must return to Eagle for the hearing. He was not expected to play in the Los Angeles Lakers' preseason game Tuesday against Phoenix. He has not played so far this preseason.

The 25-year-old NBA superstar faces up to life in prison if convicted of the single count of felony sexual assault. He has said he and the woman had consensual sex while he stayed at the mountain resort in Edwards where she worked.


Copyright 2003 by The Associated Press