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Thursday, June 17, 2004
Judge: Messages 'relevant' to discovery

Associated Press

EAGLE, Colo. -- The judge has granted Kobe Bryant's attorneys access to cell phone text messages sent among three people -- including the woman accusing the NBA star of rape -- in the hours after the alleged attack.

"The materials contain information that is relevant for discovery," state District Judge Terry Ruckriegle said in a decision released Thursday.

He ordered Bryant's defense team and Eagle County prosecutors to keep the messages and an accompanying letter from AT&T Wireless Communications Inc. sealed for now. Legal experts said the judge could rule later that the material is not relevant to the case.

"There's something in there," said Larry Pozner, a criminal defense attorney and past president of Colorado Criminal Defense Bar. "It has to be something more than 'I like pizza' or the judge wouldn't rule it relevant to look at."

Bryant, 25, has pleaded not guilty to felony sexual assault, saying he had consensual sex with a Vail-area resort worker in his hotel room last June 30. If convicted, the Los Angeles Lakers star faces four years to life in prison or 20 years to life on probation, and a fine of up to $750,000. The accuser turns 20 on Friday.

Defense attorneys have said the messages were sent within hours of the alleged attack among the accuser, a former boyfriend, Matt Herr, and a third, unidentified person.

Defense attorney Hal Haddon has said prosecutors did not subpoena the material, part of what he contends is an "ongoing pattern and practice of failing to look for -- and obstructing the defense's access to -- exculpatory evidence."

The judge has said the text messages might impeach statements or testimony, making them potentially "highly relevant" in the case.

Prosecutors took no formal position on whether AT&T should turn over the text messages to attorneys in the case. Herr's attorney, Keith Tooley, argued against the possibility at a recent hearing, saying the defense should not be allowed to go on a "fishing expedition."

Tooley's law office said he was out of town and he did not immediately return telephone and e-mail messages.

Criminal cases in Europe and Asia have hinged on text message evidence, but Bryant's case appears to be among the first in the nation in which the material could play a pivotal role.

AT&T Wireless fought a defense subpoena for the records, but turned them over to Ruckriegle when he asked for them. The company has said it cooperates with law enforcement but refused to discuss its policies on storing text messages.

"It's another link in the defense's chain of evidence," Pozner said of the messages. "From the beginning, this has been a case with the defense on the offensive, saying 'I can prove this.' When 'I can prove' becomes a defense team phrase, the prosecution is in trouble."

Bryant's attorneys also hope DNA samples from Herr and a co-worker of the accuser, bellman Bob Pietrack, will prove she lied about her sexual liaisons.

Tooley argued against that motion, too, saying forcing Herr to provide DNA would violate his constitutional rights and do nothing to shed light on whether the woman consented to sex with Bryant.

The woman's sexual history could be important if the judge allows it as evidence. The defense says injuries found on her during a hospital examination could have been caused by other sexual partners in the days surrounding her encounter with Bryant.