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Bryant May Waive Hearing

Laker star's defense could choose to avoid testimony in open court. A bond proceeding would follow.

October 08, 2003|Steve Henson | Times Staff Writer

EAGLE, Colo. — The aspen trees that cover the hills throughout Eagle County have gone from green to a vibrant gold since the last time Kobe Bryant appeared in court here. But Thursday's much-anticipated preliminary hearing could turn out to be little more than a repeat of the perfunctory seven-minute appearance Bryant made Aug. 6.

Many legal analysts say Bryant will waive the preliminary hearing because it is open to the public and because the testimony of Eagle County Sheriff's Det. Doug Winters -- the only witness expected to be called -- could be detrimental to the Laker star.

Winters interviewed the 19-year-old woman who has accused Bryant of felony sexual assault stemming from an encounter June 30 at an Edwards, Colo., hotel. Bryant, who faces four years to life in prison, says the sex was consensual.

Should the preliminary hearing be waived, another short bond hearing would be held with Bryant present. Judge Frederick Gannett then would bind the case over to district court for trial. A 5th Judicial District judge will be standing by to hold an arraignment immediately after the bond hearing, although Bryant, who is scheduled to leave Laker training camp in Honolulu today and arrive in Eagle on Thursday morning, could ask that the arraignment be postponed.

Holding the arraignment immediately would save Bryant from making another trip to Colorado, but it would require him to enter a plea Thursday. Under Colorado's speedy trial law, a trial is scheduled within six months of the arraignment.

"Often an arraignment [is postponed] because a plea bargain is being negotiated, but I can't imagine that is the case here," said Karen Steinhauser, a University of Denver law professor.

An arraignment Thursday means a trial probably would take place before April 9 -- during the Laker regular season.

"Down the road, the defense might waive the speedy trial right and ask for a continuance, but they have to justify it," Steinhauser said. The prosecution could object by pointing out that the alleged victim also wants a swift resolution.

First, Bryant's attorneys must decide on the preliminary hearing, which is held to determine whether enough probable cause exists to send the case to trial. The legal threshold for establishing probable cause is extremely low, experts say, and Steinhauser added, "I think the defense will waive [the hearing], because Det. Winters will say what the victim told him, and you are still talking about a lot of unfavorable facts" for Bryant.

However, some legal analysts say defense attorneys Pamela Mackey and Hal Haddon are likely to forge ahead because Dist. Atty. Mark Hurlbert decided last week not to introduce the most potentially damaging evidence, a videotape of the woman's statements and an audiotape of Bryant's statements to investigators.

"The defense can cross-examine [Winters] and plant the seeds of reasonable doubt by asking questions about the victim's credibility that only she can answer," said Lisa Wayne, a Denver criminal defense attorney and sexual-assault specialist who worked as a public defender with Mackey.

"They can make it clear that the case is all about credibility and that nothing can be resolved until she testifies."

Hurlbert cannot comment on his strategy because of a gag order, but experts say he feared that presenting the videotape and audiotape would prompt an appeal by defense attorneys and delay the hearing.

Admissibility of the audiotape of Bryant's statements is especially dubious. Hurlbert has described it as "an electronically enhanced version of the defendant's interview" with investigators July 1 when Bryant was recovering from knee surgery.

A defense motion to close the preliminary hearing to the public addressed the audiotape, calling it "presumptively inadmissible as trial evidence because it is the product of a surreptitious tape recording during the custodial interrogation of [Bryant] without any advisement of his Miranda rights."

Without the introduction of the videotape and audiotape, the hearing is expected to consist only of testimony by Winters and photographs of injuries to the woman. And Gannett could close a portion of the hearing and not allow the public to view the photographs, which sources indicate are of vaginal bruising and marks to her neck.

Hurlbert cannot insist that the preliminary hearing be held, because he did not file a motion within 10 days of Bryant's initial court appearance in August. Sources close to the prosecutor said he would welcome the defense dispensing with it and moving straight to arraignment.

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