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Strategy in Bryant Case Seems Clear

Defense attorneys subpoena medical records of the alleged victim, who police say overdosed on pills twice this year.

October 01, 2003|Steve Henson | Times Staff Writer

DENVER — The most public of court cases has gone underground, shifting the media horde seeking fresh video of Kobe Bryant from Colorado mountain resorts to Laker training camp in Hawaii.

As for the woman who has accused him of sexual assault, she moved from her Eagle, Colo., home and dropped out of college, escaping to an undisclosed location in search of privacy.

Attorneys from both sides have been quiet too, silenced by a judge's gag order. But their strategy, evident by a recent string of court filings, is coming into focus.

By issuing subpoenas to examine medical records of the woman, Bryant's attorneys have signaled that probing her state of mind is a key element of the defense's strategy, experts say. Furthermore, they are vigorously pursuing the issue in an effort to head off a trial.

The defense has subpoenaed the woman's medical records pertaining to what law enforcement sources have said were overdoses of pills in February and May.

Bryant's side also asked a judge to decide before the Oct. 9 preliminary hearing whether the woman waived her medical-record privacy rights by discussing the overdose attempts with others, requesting that she testify at a separate waiver hearing where a determination would be made.

"Because of the importance of the accuser's testimony to a finding of probable cause, the defense should be permitted to test her credibility as fully as possible, even at this preliminary stage," Pamela Mackey, one of Bryant's attorneys, wrote in a Sept. 15 filing.

In all, the court has received 15 motions and responses since Sept. 3 pertaining to the medical records and the woman's testimony at the preliminary hearing.

Judge Frederick Gannett is expected to announce Thursday whether he'll grant the waiver hearing, whether the woman must testify at the preliminary hearing and whether the proceedings are open to the public. Bryant does not have to testify at the preliminary hearing and is not expected to attend.

Prosecutors and attorneys representing the woman are trying to quash the subpoenas for her medical records and already are laying the legal groundwork to argue that such information be deemed inadmissible at a trial.

Legal experts expect the judge to rule that the woman will not have to testify at the preliminary hearing -- but several believe she could be required to appear at a waiver hearing.

The key question: Did she discuss the overdose attempts with others? If so, legal experts say a judge probably would allow the defense to see the medical records. Sources close to the defense said Bryant's attorneys have several witnesses who say the woman talked to them about medical and psychological treatments she received.

However, even if the defense gets the records, introducing them as evidence at a trial is a separate issue. "It is totally discretionary," said Bob Ransome, a Denver criminal defense attorney, "and [the judge] would be able to back up whatever choice he makes."

Mental health history is not protected by rape-shield laws, leaving the judge to weigh an accuser's right to privacy against a defendant's right to question her credibility in a "he said, she said" case.

"That's why her medical records and other emotional records become highly [relevant], they tell you something about her state of mind," said Larry Pozner, former president of the National Assn. of Criminal Defense Lawyers.

"The prosecution wants to argue to a jury, 'Why would she make up [the allegations]?' In order to hold that position, they need to keep the defense from having an answer. The psychological records may provide that answer."

Bryant, 25, faces four years to life in prison if convicted. He admits to having sex with his accuser at an Edwards, Colo., resort June 30 but says it was consensual. The woman, a 19-year-old hotel employee, told authorities the following day that she had been raped.

"The defense will contend that this woman reacts irrat- ionally when there is dissatisfaction in her life -- that is how it becomes admissible," said Craig Silverman, former Denver assistant district attorney. "Whatever happened in that hotel room, whether the sex was consensual or a rape, the encounter ended unsatisfactorily for her. Therefore, Kobe Bryant's lawyers can argue that this is a pertinent trait of her character. The defense just has to give the jurors something to hang reasonable doubt on."

Other experts say that even if Bryant's team is able to extract information by subpoena, a jury will not be allowed to view it as evidence. Personal difficulties the woman might have experienced, they say, have no bearing on whether she was raped.

"I don't believe that because someone has gone through a bad time and may have taken an overdose, that it now means we have to question their ability to tell the truth," said Karen Steinhauser, a law professor at the University of Denver.

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