Prosecutors worried about judge's rulings

Updated: August 3, 2004, 11:41 PM ET
Associated Press

DENVER -- Prosecutors in the sex assault case against Kobe Bryant called newly released details addressing his accuser's sex life "one-sided" Tuesday, saying they should not be used to judge the merits of the case against the NBA star.

Some 200 pages from a closed hearing in June were released late Monday by Judge Terry Ruckriegle under pressure from state courts and the U.S. Supreme Court. The documents mistakenly e-mailed to The Associated Press and six other news organizations in June were released after the media won a First Amendment fight that went to the nation's high court.

The documents include testimony from a DNA expert for the defense, Elizabeth Johnson, who says she is convinced the accuser had sex with someone after Bryant and before she contacted authorities -- a claim the woman's attorney, John Clune, has vehemently denied. She cites DNA evidence found during hospital examinations.

The defense wants to use the expert's testimony to back its claim the woman's injuries could have been caused during sex with someone other than the Los Angeles Lakers star.

Prosecutors have suggested the woman put on unwashed underwear before going to the hospital, transferring semen from a man identified only as "Mr. X" to her body, where it was found during a rape-kit examination.

Johnson said she didn't think that was likely because none of that semen was found on Bryant during his exam, suggesting the encounter with the other man happened afterward. The defense also plans to have a Colorado Bureau of Investigations expert testify on their behalf.

"It is one-sided information, and we hope that people will keep that in mind. That's what the trial is for," prosecution spokeswoman Krista Flannigan said.

There was no testimony in the documents from a prosecution expert on the issue.

But in a court filing made public Tuesday, prosecutors indicated they may present their own DNA expert who would testify semen stains on cotton can persist long after washing. Flannigan said she could not provide more details on the expert's background.

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.

The judge has said the defense can present evidence about the woman's sexual activities in the three days before a July 1, 2003, hospital exam, saying it is relevant to help determine the cause of her injuries, the source of DNA evidence and her credibility.

Legal analysts were divided on what impact the new information would have.

Larry Pozner, past president of the National Association of Criminal Defense Lawyers, said a jury may not believe the alleged victim's testimony if she had sex before contacting authorities.

"If the jury concludes she had sex after Kobe, and that she lied to the investigators, that is such a blow that I don't know that the case recovers. If this was all that the defense has, they have enough," he said.

Karen Steinhauser, a former prosecutor who has handled numerous rape cases, disagreed.

"It [the released information] only shows the defense expert," she said. "It doesn't show other explanations for this evidence, which creates unfairness.

Steinhauser said not all alleged rape victims react the same way; some do not want to be touched for months, others go into denial and pretend nothing happened. She said defense attacks on the character of the accuser could backfire, and make a jury sympathetic to her.

Clune did not return calls seeking comment.

Bryant's trial begins Aug. 27.

Separately Tuesday, the state Commission on Judicial Performance recommended voters in November retain the Bryant case judge -- but noted he scored slightly below his peer group overall and below the overall average for demeanor.

The commission said it met with Ruckriegle and he "acknowledged these concerns and presented specific actions he planned to take to improve his ratings."

Ruckriegle and Bryant's attorneys did not return phone calls.

Scott Robinson, a defense attorney who has attended the Bryant hearings, said Ruckriegle has been a tough judge. "The truth of the matter is that Judge Ruckriegle does not suffer fools lightly," he said. "It's not unusual for lawyers who make inane arguments or show up for court late to get reamed."


Copyright 2004 by The Associated Press