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Issue of judge's orders leads to finger-pointing

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.' "