Defense claims accuser waived privacy rights

Updated: December 19, 2003, 10:33 AM ET
Associated Press

EAGLE, Colo. -- Kobe Bryant's attorneys want acquaintances and the mother of the woman accusing him of rape to testify today at a hearing in which they will try to convince a judge her medical records can be used as evidence.

In a court filing Thursday, defense attorney Pamela Mackey said the woman discussed her medical condition and medications with a detective investigating the case -- a move that constitutes a waiver of her privacy rights.

Today's hearing begins at 11 a.m. ET. Bryant arrived at the courthouse at about 10:30 ET.

Legal experts say the defense is hoping to undermine the 19-year-old's credibility by proving she has mental problems that might have affected her perception of what happened in a hotel room with the NBA star last June.

The medical records and patient confidentiality are at the heart of Friday's hearing, the first in which evidence in the case will be discussed in detail. The defense witness list is sealed, but prosecutors have confirmed the accuser's mother was subpoenaed to appear. At least one friend also has been subpoenaed.

An attorney for Bryant's accuser has asked the judge to close the courtroom for any testimony regarding her medical history. State District Judge Terry Ruckriegle has not ruled on the request.

Bryant, the 25-year-old star guard for the Los Angeles Lakers, faces four years to life in prison or 20 years to life on probation if convicted of felony sexual assault. Bryant, who has said the sex was consensual, is required to appear at Friday's hearing. The Lakers play at home Friday night.

Analysts said the defense needs to do everything it can to undermine the woman's credibility at trial.

"The prosecution is desperate to say in closing, 'Why would this woman make it up?' All the defense is doing is saying, 'Judge, don't tie our hands behind our back, we want to give an answer,'" said Denver attorney Larry Pozner, former president of the Colorado Criminal Defense Bar.

Among the records the defense wants to use are documents from the North Colorado Medical Center in Greeley, where authorities brought the woman in February 2003 after determining she was a "danger to herself."

Defense attorneys Pamela Mackey and Hal Haddon have argued the woman tried to kill herself in February and again in May to get the attention of her ex-boyfriend. They also say she had been prescribed an anti-psychotic drug.

The defense also wants access to notes taken during an interview of the woman by a worker for the Resource Center of Eagle County, a rape victim's advocacy group.On Thursday, the judge granted a request for a hearing on whether those records can be released to the defense. He did not set a date for the hearing.

Bryant's attorneys could have a hard time obtaining the medical records: Under a 2002 Colorado Supreme Court decision, the records cannot even be reviewed by a judge in private unless the patient consents. In the Bryant case, the woman has not allowed the hospital to release any records.

The defense could have a better shot at obtaining notes taken by the rape counselor. Attorneys for the Resource Center of Eagle County have said the notes consist of a single sentence written by the advocate after she sat in on a police interview with the alleged victim.

Bryant's defense team is likely to win access to those notes because they were taken in the presence of law enforcement officers, Denver defense attorney Scott Robinson said.

In a side issue, prosecutor Mark Hurlbert also wants the judge to order an investigation to determine who gave the media sealed information regarding another man's semen found in underwear the woman wore to a hospital the day after the alleged attack.

The hearing is expected to last all day and dozens of reporters and television camera crews have again arrived in this small 30 miles west of the Vail ski resort. There is no indication when the judge will rule.

A Jan. 23 hearing has been scheduled to hear arguments about other issues in the case, including a defense request to throw out statements Bryant made to investigators that were secretly taped before he had been read his Miranda rights.

Copyright 2003 by The Associated Press