Rulings could force prosecution to 're-evaluate'

Updated: August 3, 2004, 9:45 AM ET
Associated Press

DENVER -- In a glimpse inside the Kobe Bryant sexual assault case, closed hearing transcripts released Monday show that a month before the judge cleared the way for the accuser's sex life to be used as evidence, prosecutors told him such a ruling would force them to re-evaluate their chances of winning a conviction.

The transcripts also contain detailed comments from a defense expert who says she believes Bryant's accuser had sex with someone else after her encounter with the NBA star and before she went to police, a claim that has been vehemently denied by the woman's attorney.

District Judge Terry Ruckriegle in late July said he will allow the NBA star's defense team to introduce the accuser's sexual activities during the three days surrounding her encounter with Bryant to help determine the source of her injuries, DNA evidence and evaluate her credibility.

He also allowed Bryant's tape-recorded statements to investigators and a T-shirt stained with the accuser's blood to be admitted. He has not yet ruled on a prosecution request to limit testimony about the woman's mental health, including what friends described as two suicide attempts.

Prosecutor Ingrid Bakke told the judge the prosecution's case could be damaged if one or more of those decisions favors the defense. Her comments were included in transcripts from closed June 21-22 hearings that were mistakenly e-mailed by a court reporter to ESPN, The Associated Press and five other news organizations, which battled Ruckriegle to the Colorado and U.S. Supreme Courts to publish the contents.

The judge reluctantly released edited copies late Monday.

"If in fact you were to rule that all of the rape-shield evidence were going to come in in this case, I'm thinking the prosecution is going to sit down and re-evaluate the quality of its case and its chances of a successful prosecution," Bakke told the judge, referring to the woman's sex life. "That ruling, the ruling on the mental health issues and the suppression of the defendant's statements make a significant change in the case, meaning the parties may have more or less willingness to negotiate based on that."

Ruckriegle told Bakke he understood, but he would not allow plea negotiations once a trial date was set. Three days later, he set an Aug. 27 trial date. He has twice extended the deadline for a plea deal, most recently to July 28.

Whether Ruckriegle would go ahead with a trial if both sides agreed to a deal is unknown, but legal experts say he has that authority.

Bryant, 25, has pleaded not guilty to felony sexual assault, saying he had consensual sex with the woman, now 20, at a Vail-area resort last summer. If convicted, he faces four years to life in prison or 20 years to life on probation, and a fine up to $750,000.

In releasing the transcripts, Ruckriegle said he concluded he must disclose the details despite concerns about compromising the privacy rights of the accuser and Bryant's right to a fair trial.

"It is with great reluctance that this court releases these transcripts," Ruckriegle wrote. "The effect of this release is to present narrowly limited, one-side evidence and argument to the public prior to the selection of a jury and without reference to the totality of the evidence.

"This court has struggled for several weeks with the obvious and conflicting convergence of rights presented by this situation."

Though initially threatened with contempt if transcripts from the June 21-22 hearing were published, news organizations challenged Ruckriegle's order as unconstitutional.

The Colorado Supreme Court conceded the order amounted to prior restraint, but said it was allowable under the circumstances of the case. The court, however, suggested Ruckriegle quickly decide whether the details were admissable as evidence.

U.S. Supreme Court Justice Stephen Breyer agreed, urging the judge to release redacted copies of the transcript if not the entire document.

Prosecution spokeswoman Krista Flannigan did not return a message left late Monday. The voicemail of the woman's attorney, John Clune, was full and a second attorney, Lin Wood, did not immediately return a call.

The judge redacted 68 lines out of some 200 pages of closed-door testimony dealing with evidence he ruled inadmissible, in part because of Colorado's rape-shield law. The vast majority of the transcripts were released.

"We're pleased that Judge Ruckriegle makes clear that our persistence in pursuing this to the Supreme Court has led to releasing a significant amount of information that had been restrained," said Nathan Siegel, an attorney for the media groups.

Scott Robinson, a Denver defense attorney following the case, said Bakke's statement suggests prosecutors desperately wanted the rape-shield evidence barred from the trial.

"They had a theory to explain the evidence away, a statute to rely on, they had specter of the ruling discouraging other victims from coming forward," he said.

The documents provide rare detail of the fierce battles over evidence that have gone on for months behind closed doors. Bakke's comments are by far the most candid public assessment from anyone on the trial team about the strength of the prosecution's case.

During the hearing, District Attorney Mark Hurlbert said there were brief discussions about a plea deal, but the two sides were "very far apart." The defense team has never commented on the possibility of a plea deal and legal experts say there is little chance they would seek one.

Bakke's comments came near the end of a hearing that dealt primarily with the accuser's sexual activities around the time of her June 30, 2003, encounter with Bryant.

The defense has claimed the woman had multiple sexual partners in the three days surrounding her time with Bryant. It has suggested her injuries could have been caused during sex with someone other than the Los Angeles Lakers star.

During the June hearing, defense expert Elizabeth Johnson said DNA samples and genetic tests suggest Bryant's accuser had sex with another man after the alleged attack and before she went to authorities.

Clune, the accuser's attorney, has publicly denied the suggestion she had sex with before going to police, saying "anyone trying to prove otherwise will be chasing ghosts."

Johnson, however, said the woman told police she showered the morning of June 30 and put on clean purple underwear. But she said her laboratory and the Colorado Bureau of Investigation both found genetic material matching Bryant and a man identified as "Mr. X" on that garment.

Mr. X's genetic material was also found on vaginal swabs and on the woman's thighs during the hospital exam, suggesting the two had sex after she was with Bryant, Johnson said. She said none of Mr. X's genetic material was found on Bryant, again suggesting her encounter with the other man followed her encounter with the NBA star.

The woman's sex life has been the subject of closed hearings since March. What prosecution experts have said or what evidence they have that might counter Johnson's conclusions is not publicly known.

The newly released transcripts show Hurlbert asked Johnson whether some of Mr. X's DNA could have been transferred to her body from a yellow pair of underwear she wore to her hospital exam; she wore a purple pair the night of her encounter with Bryant.

"Now, in your hypothesis you said that the -- the transfer really couldn't have happened, essentially, correct? Or highly unlikely? Is that a better way to put it?" Hurlbert asked.

"No, I said it couldn't explain the presence of Mr. X's sperm everywhere in the absence of it on other strategic items of evidence," Johnson said.

The transcripts also include arguments over state crime victims' compensation money given to the accuser, details of which were mistakenly released by the trial court last week. In that hearing, defense attorney Pamela Mackey claimed the woman has received nearly $20,000 from the program, suggesting it has been an incentive for the woman to continue the court battle. Clune denied the claim.

Just last week, Ruckriegle apologized in open court for a series of mistakes by court staff that have put the accuser's name on the Internet and given the public an inadvertent look at some of the evidence. Clune has said the mistakes have put the woman's life in danger and undermined her trust in the judge and others.

The mistakes date back months. In September, the woman's name was included in a filing on a state courts Web site that was quickly removed. Last fall, the hospital where she and Bryant were examined accidentally turned over her medical records to attorneys in the case.

That was followed by the e-mail mistake in June and last week's gaffe in which a sealed order by Ruckriegle was mistakenly posted on the Web site, divulging her name again and information about DNA evidence collected during Bryant's hospital exam.

Robinson, the defense attorney, called the amount of physical evidence seemingly related to other sexual activities coupled with the accidental release of the transcripts a "double whammy" for prosecutors.

"It was a one-two punch that really put this case in an entirely different posture than the vast majority of sex assault prosecutions in Colorado," he said.


Copyright 2004 by The Associated Press