Issue of judge's orders leads to finger-pointing

Updated: June 15, 2004, 6:36 PM ET
Associated Press

DENVER -- Attorneys in the Kobe Bryant sexual assault case swapped sharp accusations Tuesday, with each side asking the judge to punish their opponent for allegedly ignoring court orders and dragging their feet.

Bryant's defense team wants the judge to reduce the rape charge against the NBA star and punish prosecutors for what it calls inexcusable delays. In particular, the defense says prosecutors should be sanctioned for violating the judge's order to allow a defense expert to observe DNA testing.

Defense attorney Pamela Mackey said in a court filing that the order was clear and sanctions are justified because of the prosecution's "blatant and unexcused disregard" of the order, and other actions that have slowed the case.

She asked state District Judge Terry Ruckriegle to bar prosecutors from conducting the DNA testing and reduce the charge against Bryant. He would still be charged with felony sexual assault, but the potential punishment would not be as serious.

"The prosecution has not sought to offer any understandable reasons to the court for why its failure to comply with court orders might be excusable," Mackey said. "Instead, the prosecution willfully denies that the court issued any such orders or that it has in any way violated them."

In his filing, District Attorney Mark Hurlbert said he received DNA testing details from a defense expert, Elizabeth Johnson, 10 days after a court-ordered deadline.

"This delay will slow this case down even further and the people feel that sanctions are appropriate," he wrote.

Hurlbert asked the judge to either prohibit Johnson from testifying or give the prosecution more time to establish the credentials of Henry Lee, whom they want to testify to counter Johnson's statements. Details of the proposed testimony have been sealed.

Bryant, 25, has pleaded not guilty to felony sexual assault. He has said he had consensual sex with a 19-year-old employee of a Vail-area hotel where he stayed last summer.

If convicted, he faces mandatory prison time of four years to life, 20 years to life on probation and a fine of up to $750,000. Under the charge Mackey suggested, Bryant could face two years to life in prison, four years to life on probation, and a fine up to $500,000.

In a June 3 order, Ruckriegle told prosecutors to explain why they should not be sanctioned for failing to follow his order.

In response, prosecutor Dana Easter said any delays in testing were the fault of the defense. She also said prosecutors believed the judge was suggesting -- not demanding -- a defense expert be present for the testing.

Prosecution spokeswoman Krista Flannigan said the testing has not been conducted. The dispute is expected to be brought up in a two-day court hearing scheduled to begin Monday.

Prosecutors have not publicly disclosed what evidence they want tested, though it is believed to involve material gathered during hospital exams of the accuser and Bryant.

Semen and pubic hair found in underwear the woman wore to the exam does not match Bryant. The defense has said the woman had multiple sexual partners the week of the alleged assault as part of a "scheme" to gain the attention of an ex-boyfriend.

Prosecutors have said the Colorado Bureau of Investigation conducted DNA testing on the material last fall, and that a lab hired by Bryant's attorneys conducted its own testing this spring.

The results were different, and prosecutors said last month they want to test the material again.

Attorney Jim Fahrenholtz, who has tried numerous cases before Ruckriegle as a prosecutor and as a defense attorney, said the prosecution will probably be punished.

"When he gives a court order, you better follow it," he said. "He doesn't mess around with people not following court orders."

He said any punishment would likely prevent prosecutors from introducing certain evidence rather than reducing the charge.

Former prosecutor Karen Steinhauser said Ruckriegle would likely give prosecutors the benefit of the doubt.

"Judges are very, very reluctant to exclude evidence that's relevant and may be helpful to the fact-finder. I think the court would do that only as a last resort," she said. "If it looks like the prosecution blatantly disregarded the court's orders, the judge may be upset enough to say 'You're not going to get to use that.' "


Copyright 2004 by The Associated Press

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