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Wednesday, July 7, 2004
Lawyers argue with Colorado Supreme Court

Associated Press

DENVER -- The media asked the Colorado Supreme Court on Wednesday to clear the way for publication of closed-door hearing details in the Kobe Bryant sexual assault case, saying fair trial and privacy rights don't trump the First Amendment.

The court fight involves transcripts from a two-day hearing that were accidentally e-mailed by a court reporter to seven news organizations, including The Associated Press.

District Judge Terry Ruckriegle has threatened a contempt citation for any organization that publishes the details. Last week, his attorney said privacy concerns for the alleged victim and Bryant's right to a fair trial should supersede the media's First Amendment rights and that the court order did not amount to unconstitutional prior restraint of a free press.

Media attorney Tom Kelley said none of those arguments has merit.

A significant amount of information on topics covered in the closed-door hearing has already been discussed in court filings and in open court, Kelley said in the response filed Wednesday.

It was unclear when the court will issue a decision. Attorney Steve Zansberg, who also represents the media groups involved, said a decision either way could be appealed to the U.S. Supreme Court.

None of the organizations that received the documents has published information from them.

Bryant, 25, has pleaded not guilty to felony sexual assault, saying he had consensual sex with the woman, now 20, 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 transcripts are from a hearing June 21-22. Portions that were closed dealt primarily with arguments about the accuser's sexual activity in the days surrounding her encounter with Bryant last summer, and money given her by a state victims' compensation program.

Bryant's attorneys claim she had multiple sexual partners in the days surrounding the encounter and have suggested her injuries could have been caused during sex with 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.

The judge has not ruled whether any of the information can be admitted as evidence.

The media should seek access to such information but must weigh the potential harm and benefits before publishing, said Bob Steele, senior ethics faculty for the Poynter Institute, a journalism research and education center in St. Petersburg, Fla.

"There must be a purposeful, deliberative, serious conversation about the content of the documents," he said. "There must be a very high threshold set by the journalists in order to justify using such potentially harmful information."

Publication could make it extremely difficult to find an impartial jury and ensure a fair trial, said Richard Gabriel, who runs a trial consultancy business in Los Angeles.

"In a close-call case where jurors have information on both sides, a little piece like that ultimately could affect people and push them toward reasonable doubt," he said.

Besides 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."

In filings made public Wednesday, prosecutors and the accuser's attorney asked the judge to reject media requests to allow cameras in the courtroom during the trial, saying it could threaten the safety and violate the privacy of the woman and witnesses.

"Mass television coverage of this case would further victimize this 20-year-old young woman and continue to deter other rape victims from reporting criminal conduct," said her attorney, John Clune.

District Attorney Mark Hurlbert said cameras can affect attorneys, judges and witnesses in the search for the truth, and detract from the "dignity of the process by making the trial a show rather than a serious proceeding."

"To put the faces of the victim and witnesses on the evening news night after night could turn them into unwilling celebrities and potential targets," Hurlbert said.