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Friday, July 23, 2004
Sexual activity days before exam deemed relevant

Associated Press

DENVER -- The judge in the Kobe Bryant sexual assault case ruled Friday that the accuser's sex life during the week of their encounter can be used against her at trial, a huge victory for the defense and perhaps the most important decision in the case.

District Judge Terry Ruckriegle said details of the woman's sexual activities in the three days before her July 1, 2003, hospital examination are relevant to help determine the cause of her injuries and the source of DNA evidence. He also said the evidence was important in determining the woman's credibility.

Colorado's strict rape-shield law, which generally prevents the sex life of an alleged assault victim from being admitted as evidence, does not apply to all the information Bryant's lawyers wanted to introduce, the judge said. He said "specific instances of sexual activity" and evidence of sex can be offered to bolster the defense contention that her injuries were not caused by the NBA star.

This evidence is as damaging a set of facts as a prosecutor could ever have to contend with and one wonders if at long last the accuser will pull the plug on this case.
Larry Pozner, former president of the National Association of Criminal Defense Lawyers

Under seal, the judge filed a detailed ruling explaining what evidence will be admitted. He also extended the deadline for a plea bargain to Wednesday.

Prosecutors will decide how to proceed after reviewing the decision and no options have been ruled out, prosecution spokeswoman Krista Flannigan said.

"We have no plans of not moving forward with the prosecution," she said. "It's just, what is that going to look like?"

The woman's attorney, John Clune, declined comment and defense attorneys did not return a call.

"This case is just going to have a massive accumulation of evidence that targets the credibility of the accuser. In most sexual assault cases, the complaining witness is the strength of the case. In this one, she's the weakness of the case," said Larry Pozner, former president of the National Association of Criminal Defense Lawyers. "This evidence is as damaging a set of facts as a prosecutor could ever have to contend with and one wonders if at long last the accuser will pull the plug on this case."

Cynthia Stone, executive director of the Colorado Coalition Against Sexual Assault, said the ruling was discouraging but said the final decision will be up to Eagle County jurors.

"This stuff is going to be put in front of the jury along with all the other evidence -- it's just a small piece of that," she said. "The ultimate question the jury has to answer is whether Kobe Bryant forced this woman to have sex against her will."

Bryant, 25, faces an Aug. 27 trial on a single charge of felony sexual assault. He has pleaded not guilty, saying he had consensual sex last summer with the woman, then a 19-year-old front desk worker at a Vail-area resort. She is now 20.

We have no plans of not moving forward with the prosecution. It's just, what is that going to look like?
Krista Flannigan, prosecution spokeswoman

If convicted, Bryant faces four years to life in prison or 20 years to life on probation, and a fine up to $750,000.

The judge has already settled a number of key issues with jury selection just five weeks away. But the defense's bid to question the accuser's credibility by bringing up her sex life was considered one of the most important pieces of the upcoming trial.

The defense has suggested the woman had multiple sexual partners in the days surrounding her June 2003 encounter with Bryant, including sex with someone after the alleged attack and before she contacted the authorities. Her attorney has vehemently denied that claim. The defense contends injuries found on her during an exam at a Glenwood Springs hospital could have been caused by someone other than Bryant.

Ruckriegle agreed the woman's sex life in the 72 hours before the exam was relevant, but barred "any and all other evidence" related to her conduct.

The defense can introduce evidence about the relationships between the alleged victim and the first people she spoke with after her encounter with Bryant. Ruckriegle did not identify them, but two have been identified in previous court filings and hearings as former boyfriend Matt Herr, with whom she exchanged cell-phone text messages, and former co-worker and high school classmate Bobby Pietrack.

Ruckriegle said such evidence could include information about whether sexual intimacy was part of those relationships, but said he would limit that discussion to evidence detailed in the sealed ruling.

Prosecutors could ask the state Supreme Court to review the decision, said Norm Early, a former Denver district attorney familiar with the case. He said, however, that such a request could suggest the prosecution believes the ruling harms their case.

Bob Pugsley, a professor at Southwestern University School of Law, agreed with Pozner that the ruling would probably survive an appeal.

"We're not talking about remote history, we're not talking about anyone else other than the alleged victim's own statements against Kobe and her own behavior, which can be scientifically documented through the DNA samples on the underwear that she wore to her examination," Pugsley said.

The prosecution can still use evidence that includes Bryant's statements to investigators and a T-shirt stained with the woman's blood. Early also said the defense would still have to explain why the woman might have had sex before going to the authorities.

"But those are things for the jury to determine," Early said.

In a separate development, attorneys for Ruckriegle said they had asked U.S. Supreme Court Justice Stephen Breyer to uphold his order barring media organizations from releasing details from a closed-door hearing that were mistakenly e-mailed by a court reporter.

The judge's order, which was upheld this week by the Colorado Supreme Court, threatens news organizations including ESPN and The Associated Press with contempt of court if material is published from last month's hearing on the woman's sex life and other issues.

The other organizations involved in the transcripts case are The Denver Post, Los Angeles Times, CBS, Fox News and the television show "Celebrity Justice."

The media groups contend the order is an unconstitutional prior restraint of a free press. But the Colorado attorney general's office, representing Ruckriegle, said publication could torpedo the trial.

"Depending on the information the petitioners may choose to disseminate to the world, publication may violate constitutionally based and statutory privacy rights of the alleged victim and the defendant in this case, substantially hinder jury selection ... and impinge upon the defendant's right to a fair trial," the attorneys wrote. They also suggested publication could discourage assault victims from reporting the attacks to authorities and claimed the media should have appealed to the Colorado Supreme Court before seeking out Breyer.