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Rulings could force prosecution to 're-evaluate'

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.