Judge: Right to fair trial at stake

Updated: July 2, 2004, 9:38 PM ET
Associated Press

DENVER -- Citing Kobe Bryant's right to a fair trial and privacy concerns for his alleged victim, the trial judge in the NBA star's sexual assault case urged the Colorado Supreme Court on Friday to back up his order barring the news media from releasing details from a closed-door hearing.

"While it is true that the (news media's) First Amendment freedoms are extraordinarily powerful, they must not be permitted to overcome these most fundamental of personal rights," District Judge Terry Ruckriegle's attorneys wrote in a 21-page response ordered by the high court.

The dispute centers on transcripts from a closed hearing that were mistakenly e-mailed last week to seven media organizations, including The Associated Press, by a court reporter. A few hours later, Ruckriegle ordered the organizations to destroy their copies without publishing them or be held in contempt of court. The media challenged the order.

The transcripts deal with attempts by Bryant's attorneys to introduce information about his accuser's sex life and money she has received under a state victims' compensation program.

None of the news organizations has published the material. The Supreme Court said Ruckriegle's order remains in effect until the question of its legality is resolved.

Media attorney Tom Kelley said "a very persuasive" response to the judge's arguments will be filed by Wednesday. As for the rights to privacy and a fair trial trumping the First Amendment, Kelley said: "No court that I know of has ever held that to be so."

Attorneys for the news organizations contend that prior restraint is a clear violation of free-speech and free-press guarantees in the Constitution. Legal experts and consultants agreed the media likely will prevail in their fight with the judge given the U.S. Supreme Court's affirmation of the freedom of the press.

"Prior restraints on the media, even in a courtroom context, are extremely rare and have never been upheld by the U.S. Supreme Court," said Jane Kirtley, a media ethics and law professor at the University of Minnesota in Minneapolis.

Bryant, 25, has pleaded not guilty to felony sexual assault, saying he had consensual sex with the woman in his hotel room in June 2003. If convicted, the Los Angeles Lakers star faces four years to life in prison or 20 years to life on probation, and a fine up to $750,000. The trial begins Aug. 27.

The judge and prosecutors in the case argued that because the media weren't allowed in the hearing and the records were sealed, the transcripts were obtained in violation of the law. That undermines the media's constitutional arguments, they said.

"Although on occasion the Supreme Court has held that the freedom of the press outweighs certain specific constitutional rights, never has it been forced to balance the First Amendment against the confluence of rights at stake here," the judge's attorneys said.

Prosecutor Mark Hurlburt said the records should remain sealed to protect Bryant's right to a fair trial and protect the woman from "harm, harassment, intimidation or retaliation."

Bryant's defense team did not weigh in.

"It's pretty hard to argue that the media did anything unlawful in the way they obtained the information. It was set on their lap," said Craig Silverman, a former Denver prosecutor who is following the case.

Kirtley agreed and questioned the wisdom of agreeing to keep certain information secret.

"The media have the desire to be as cooperative as possible," Kirtley said. "The danger of any kind of ground rules, though, is the court is going to try to start treating them like they're laws."

She and other legal experts said whether the media should actually publish the information is another question.

"The news organizations have to try to determine if the informational value outweighs the harm to both the victim and the course of justice," Kirtley said. "That's pretty heavy-duty stuff to try to ask yourself. I don't have an answer."

Bryant's attorneys claim she had multiple sexual partners in the days surrounding her encounter with the NBA star and have suggested her injuries could have been caused by someone other than Bryant. They also say she received unusually large amounts of money from the compensation program, suggesting it was an incentive to go forward with the case.

Ruckriegle has not ruled on whether any of that information can be used during the trial.

In addition to the AP, the other organizations involved in the court challenge are The Denver Post, the Los Angeles Times, CBS, Fox News, ESPN and the television show "Celebrity Justice."

Copyright 2004 by The Associated Press